FebruarySUPREME COURT OF Nova Scotia
Citation: Li v. MacNutt & Dumont, 2015 NSSC 53
Date: 20150218
Docket: Hfx, No. 432249
Registry: Halifax
Between:
Tricy Chun Ying Li
Plaintiff
v.
MacNutt & Dumont and Matthew T. Walters
Defendants
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Judge: |
The Honourable Justice Michael J. Wood
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Heard: |
January 20, 2015, in Halifax, Nova Scotia
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Final Written Submissions: |
February 6, 2015 |
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Counsel: |
Tricy Chun Ying Li, self-represented Ian R. Dunbar, for the Defendant |
By the Court:
[1] The plaintiff Tricy Chun Ying Li alleges that she was fired from her employment with 4150775 Canada Inc. (formerly known as By the Water Shellfish Inc.) in March 2012. As a result of this she claims to be owed unpaid salary and commissions of slightly less than $10,000.00. The merits of this claim have never been determined despite Ms. Li’s involvement in multiple legal proceedings in Nova Scotia and Prince Edward Island. This litigation involves a claim by Ms. Li against Matthew Walters and his firm MacNutt & Dumont. Mr. Walters is a P.E.I. lawyer who represented Ms. Li in litigation with her former employer in that province.
[2] The defendants have made a motion seeking a determination under Civil Procedure Rule 4.07 that the Nova Scotia Supreme Court does not have jurisdiction over Ms. Li’s claim. In the alternative they request that this Court decline to exercise jurisdiction in favour of Prince Edward Island on the basis of forum non conveniens.
[3] Prior to undertaking an analysis of the merits of the defendants’ motion I will outline the complicated procedural history relating to Ms. Li’s claim for unpaid salary and commissions. I will also review the current state of the law relating to jurisdictional disputes between Canadian provinces.
Background
[4] Following the termination of her employment with 4150775 Canada Inc. Ms. Li filed a complaint pursuant to the Nova Scotia Labours Standards Code seeking payment of outstanding salary and commissions. The Labour Standards Division of the Nova Scotia Department of Labour and Advanced Education initiated an investigation of the complaint.
[5] By Statement of Claim, issued on September 14, 2012, 4150775 Canada Inc. sued Ms. Li for alleged breach of fiduciary duty. In October 2012 Ms. Li retained Mr. Walters to represent her with respect to that claim. Ms. Li informed Mr. Walters of her outstanding complaint under the Nova Scotia Labour Standards Code. Mr. Walters obtained details of Ms. Li’s complaint directly from the Nova Scotia Labour Standards Division.
[6] On October 29, 2012 Mr. Walters filed a defence to the P.E.I. action which included a counter-claim for unpaid salary and commission.
[7] Once the Nova Scotia Labour Standards Division was informed of Ms. Li’s counter-claim in the P.E.I. litigation it discontinued investigating her complaint. This was done in accordance with s.83(3)(a) of the Nova Scotia Labour Standards Code because her counter-claim included the same elements as the Labour Standards Complaint.
[8] The P.E.I. litigation appears to be dormant. In August 2013 Mr. Walters obtained an order requiring the plaintiff to post security for costs. Apparently no such security has been posted. At the same time Mr. Walters advised Ms. Li that he would be applying for an order removing himself as solicitor of record on the basis that there had been a loss of confidence on the part of Ms. Li as well as his inability to communicate effectively with her.
[9] On April 22, 2014 Ms. Li commenced a proceeding in the Nova Scotia Small Claims Court against Mr. Walters and his firm for mishandling the P.E.I. litigation. The Notice of Claim filed by Ms. Li concluded with the following:
This case is total failure. I couldn’t get my counter claims and legal fee from 4150775 Canada Inc. Matthew mishandled my cases. I already filed my claims for salary and commission in NS Labour Standards before Matthew handled cases. After Matthew took this case, Matthew moved my claims from NS Labour Standards to PEI court. Matthew did disservice to my claims for salary and commission. Matthew should be responsible for counter claims of $9,870.93 and refund me paid legal fee of $1368.75 totalling $11239.68 due to breach of fiduciary duties, negligence, mishandling this case, omission and errors.
[10] On June 2, 2014 the Small Claims Court of Nova Scotia held a hearing and the adjudicator issued a decision on June 16, 2014 which concluded as follow:
[1] Tricy Chun Ying Li has sued Matthew Walters, a P.E.I. lawyer, and his firm MacNutt & Dumont for negligence in the conduct of civil suit in P.E.I. I have no jurisdiction to hear this matter. The Act provides:
Commencement of claim or transfer of proceeding
19(1) a claim before the Court shall be commenced in the county in which
(a) The cause of action arose; or
(b) The defendant or one of several defendants resides or carries on business,
By filing a claim in the form prescribed by the regulations, accompanied by the prescribed fee, with the prothonotary of the Supreme Court in the proper county.
[2] The cause of action is purely in P.E.I. It is the negligent conduct of a P.E.I. lawyer in the conduct of a P.E.I. lawsuit. The defendants reside and carry on business in P.E.I. Even if I thought I had jurisdiction, I would decline to exercise it. This is a P.E.I. negligence claim without connection to Nova Scotia other than Mr. (sic) Li’s residence here.
[3] Mr. (sic) Li submits that s.20 of the Small Claims Court Act applies:
Commencement of claim by non-resident
20 Where the defendant is a person who is not resident in the Province or a corporation not having its head office in the Province and the cause of action arose partly in one county and partly in another, the claimant may file the claim in either county. R.S., c.430, s.20.
[4] The section speaks of “counties” not provinces. The cause of action, the negligence of a P.E.I. lawyer in the conduct of a P.E.I. lawsuit, arose in P.E.I. The section does not apply.
ORDER
[5] I dismiss the claim out of this Court.
Dated at Halifax, Nova Scotia
This 16th day of June, 2014
[11] Ms. Li appealed the Small Claims Court decision. Her appeal was dismissed by order of the Honourable Justice Murphy by order dated September 16, 2014.
[12] The hearing of Mr. Walter’s motion to be removed as solicitor of record in the P.E.I. litigation was heard on October 4, 2014. Ms. Li filed a brief in response to that motion which recited the history of her dealings with Mr. Walters and referred to the decision of the Nova Scotia Small Claims Court saying that P.E.I. was the more appropriate court for her claims. The brief concluded with the request that the court order the same relief which she had been seeking in the small claims action. The P.E.I. court did not grant this request but did remove Mr. Walters as solicitor of record.
[13] On October 14, 2014 Ms. Li commenced these proceedings in the Supreme Court of Nova Scotia against Mr. Matthews and his firm seeking compensation for her lost salary and commissions as well as a refund of legal fees. The Statement of Claim included the following allegations:
5) …After Mr. Walters moved my claims from NS Labour Standards Division to PEI court, he had no ability to handle it. Mr. Walters did disservice to my claims for salary and commission. Before Mr. Walters started handling my case, my claims for salary and commission are protected by NS Labour Standards Code. Mr. Walters has restitutionary obligations to restore my claims to protection level of NS Labour Standards Code. He also has restitutionary obligations to restore my claims to NS.
6) There is real and substantial connection between NS and my claims. NS court has jurisdiction on this proceeding according to NS court jurisdiction and proceeding transfer Act, 2003
7) Because tort arose in NS and damage is calculated according to protection level of NS Labour Standards Code, PEI Supreme court thought: NS court is more appropriate court for my claims.
[14] The defendant’s motion for an order staying these proceedings on the basis that Nova Scotia does not have jurisdiction to hear the claim or alternatively on the basis of forum non-convenience was filed on November 25, 2014.
Positions of the Parties
[15] The defendants argue that the Supreme Court of Nova Scotia does not have jurisdiction over this proceeding. They rely on the provisions of the Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003 (2nd SESS.), c. 2 (“CJPTA”) as setting out the criteria to be applied by the court in that analysis.
[16] The defendants say that the jurisdictional decision of the Small Claims Court adjudicator is binding on Ms. Li to the extent that he decided that the cause of action arose in P.E.I. They rely on the doctrine of issue estoppel in support of that assertion. The only remaining connection between this action and Nova Scotia is Ms. Li’s residence in the province and potentially the location where damages were suffered. It is the position of the defendants that these connections are insufficient to ground jurisdiction.
[17] Even if I am satisfied that this Court has jurisdiction over Ms. Li’s claim the defendants submit that the principles of forum non conveniens justify the Court refusing to exercise that jurisdiction in favour of P.E.I. Section 12(2) of CJPTA sets out factors to be considered in exercising that discretion including the comparative convenience and expense to the parties in litigating the matter in either jurisdiction.
[18] Ms. Li is representing herself in this proceeding, however her written briefs and oral submissions are of a very high quality, particularly in light of the complexity of the legal issues raised by the defendants’ motion. In addition it is apparent that Ms. Li’s first language is not English. She requested permission to have translation assistance at the hearing which was granted. For this reason I will characterize her claim and submissions on this motion as I interpret them which might not reflect the precise language which she used.
[19] An obvious example is her claim that Mr. Walter’s negligence caused her to lose the “protection” of the Nova Scotia Labour Standards Code. I interpret this to mean the loss of the statutory lien created by s. 88 of the Labour Standards Code which gives her claim priority over any charges and mortgages on the real or personal property of 4150775 Canada Inc. in the Province of Nova Scotia. The thrust of this action by Ms. Li is the allegation that when Mr. Walters included her claim for unpaid commission and wages in the P.E.I. litigation she lost the security of the statutory lien created by s. 88.
[20] Ms. Li’s position is that there are connections between Nova Scotia and the claim beyond her residence. She alleges the damages were suffered in this province and by communicating with the Labour Standards Division and Ms. Li in Nova Scotia Mr. Walters effectively carryied on business here. She says these are sufficient to give this court jurisdiction over her action.
Legal Principles – Territorial Jurisdiction
[21] The territorial jurisdiction of the Supreme Court of Nova Scotia is to be determined in accordance with the provisions of the CJPTA . Section 4 of that legislation provides:
4 A court has territorial competence in a proceeding that is brought against a person only if
(a) that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counter-claim;
(b) during the course of the proceeding that person submits to the court's jurisdiction;
(c) there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding;
(d) that person is ordinarily resident in the Province at the time of the commencement of the proceeding; or
(e) there is a real and substantial connection between the Province and the facts on which the proceeding against that person is based. 2003 (2nd Sess.), c. 2, s. 4.
[22] Section 4(e) provides for jurisdiction where there is a real and substantial connection between the facts underlying the proceeding and Nova Scotia. Circumstances which give rise to a rebuttable presumption of a real and substantial connection are set out in s.11 which states:
11 Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between the Province and the facts on which a proceeding is based, a real and substantial connection between the Province and those facts is presumed to exist if the proceeding
(a) is brought to enforce, assert, declare or determine proprietary or possessory rights or a security interest in immovable or movable property in the Province;
(b) concerns the administration of the estate of a deceased person in relation to
(i) immovable property of the deceased person in the Province, or
(ii) movable property anywhere of the deceased person if, at the time of death, the person was ordinarily resident in the Province;
(c) is brought to interpret, rectify, set aside or enforce any deed, will, contract or other instrument in relation to
(i) immovable or movable property in the Province, or
(ii) movable property anywhere of a deceased person who, at the time of death, was ordinarily resident in the Province;
(d) is brought against a trustee in relation to the carrying out of a trust in any of the following circumstances:
(i) the trust assets include immovable or movable property in the Province and the relief claimed is only as to that property,
(ii) that trustee is ordinarily resident in the Province,
(iii) the administration of the trust is principally carried on in the Province,
(iv) by the express terms of a trust document, the trust is governed by the law of the Province;
(e) concerns contractual obligations, and
(i) the contractual obligations, to a substantial extent, were to be performed in the Province,
(ii) by its express terms, the contract is governed by the law of the Province, or
(iii) the contract
(A) is for the purchase of property, services or both, for use other than in the course of the purchaser's trade or profession, and
(B) resulted from a solicitation of business in the Province by or on behalf of the seller;
(f) concerns restitutionary obligations that, to a substantial extent, arose in the Province;
(g) concerns a tort committed in the Province;
(h) concerns a business carried on in the Province;
(i) is a claim for an injunction ordering a party to do or refrain from doing anything
(i) in the Province, or
(ii) in relation to immovable or movable property in the Province;
(j) is for a determination of the personal status or capacity of a person who is ordinarily resident in the Province;
(k) is for enforcement of a judgment of a court made in or outside the Province or an arbitral award made in or outside the Province; or
(l) is for the recovery of taxes or other indebtedness and is brought by Her Majesty in right of the Province or of Canada or by a municipality or other local authority of the Province. 2003 (2nd Sess.), c. 2, s. 11.
[23] As this section indicates the list of presumptive connections is not limited. This means that a party seeking to establish jurisdiction may do so by proving other sufficient circumstances.
[24] The CJPTA is similar to statutes found in other provinces such as British Columbia and Saskatchewan. This legislation adopts, with some modification, the model legislation proposed by the Uniform Law Conference of Canada. A number of provinces such as Ontario have not adopted a legislative approach to the determination of jurisdiction from a conflicts of laws perspective.
[25] The scheme found in the CJPTA is relatively straight forward. Territorial jurisdiction exists where any of the criteria in s. 4 are established. If one or more of the circumstances listed in s. 11 is proven there is a presumption of jurisdiction by virtue of the existence of a real and substantial connection between the litigation and Nova Scotia. Where a plaintiff seeks to establish jurisdiction because of an alleged real and substantial connection not found in s. 11 of CJPTA the situation becomes much less clear.
[26] In their brief, and at the hearing, the defendants relied on the Nova Scotia Court of Appeal decision in Bouch v. Penny 2009 NSCA 80 for the principles governing the application of CJPTA. In that case the plaintiff infant was born in Alberta and subsequently moved to Nova Scotia. Four years later a medical malpractice lawsuit was started in Nova Scotia against the physicians and hospital in Alberta who had provided allegedly negligent care to the plaintiff and his mother. None of the circumstances in s. 4(a) to (d) of CJPTA existed nor could the plaintiff establish any of the presumptive circumstances giving rise to a real and substantial connection under s. 11.
[27] The Court in Bouch concluded that the plaintiff had established circumstances justifying the acceptance of jurisdiction relying upon its previous jurisprudence and the Ontario Court of Appeal decision in Muscutt v. Courcelles, [2002] O.J. 2128. The approach of the Court of Appeal is seen in the following passage from the Bouch decision:
50 The reasons of the Ontario Court of Appeal in Muscutt embrace the earlier approach taken by this Court in Oakley, and in O'Brien, cases described and approved by Sharpe, J.A. as "leading authorities". In those decisions this Court reasoned that fairness to both parties was an appropriate consideration when deciding the first step in the legal analysis framework, that being whether there was a real and substantial connection between the cause of action and the forum chosen by the plaintiff. For example, and I now repeat, in O'Brien v. Canada (Attorney General), 2002 NSCA 21, Hallett, J.A. held at para. 20:
[20] ...The concept of order and fairness is integral to the question of determining whether there is a real and substantial connection between the cause of action and the forum province. This Court has held in Oakley that it is not inappropriate for a court to consider as a component of the test, the fairness to the parties in determining if there is a real and substantial connection between the cause of action and the forum province that warrants a finding that the court has jurisdiction simpliciter.
(Underlining mine)
51 Accordingly, I reject the suggestion that considerations of fairness have no place in the inquiry into the existence of a real and substantial connection, and are only to be weighed during the application of the discretionary forum non conveniens doctrine. In my respectful view, such a prohibition would introduce an unnecessary and unrealistic rigidity to a test that is clearly designed to be flexible. To impose such a constraint would prevent a judge's assessment of the totality of the evidence when deciding whether the circumstances made it proper to accept jurisdiction over the action as framed by the plaintiff.
52 From the cases he reviewed, Justice Sharpe identified a list of emerging factors which would be relevant in assessing these jurisdictional questions. Sharpe, J.A. offered a list of eight factors:
(1) The connection between the forum and the plaintiff's claim
(2) The connection between the forum and the defendant
(3) Unfairness to the defendant in assuming jurisdiction
(4) Unfairness to the plaintiff in not assuming jurisdiction
(5) The involvement of other parties to the suit
(6) The court's willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis
(7) Whether the case is interprovincial or international in nature
(8) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere
53 These were the same eight factors considered by Justice Wright in satisfying himself that Nova Scotia had acquired a real and substantial connection to the present litigation. I would endorse this list as a useful series of criteria with which to judge such matters, while at the same time observing that the list is by no means exhaustive. It offers a roadmap to guide judges hearing such applications. To borrow the language of s. 11 of the Act, the list of factors serves to complement "[w]ithout limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection ...". I would conclude on this point by endorsing the observations of Justice Sharpe in introducing the factors he identified:
[75] It is apparent from Morguard, Hunt and subsequent case law that it is not possible to reduce the real and substantial connection test to a fixed formula. A considerable measure of judgment is required in assessing whether the real and substantial connection test has been met on the facts of a given case. Flexibility is therefore important.
[76] But clarity and certainty are also important. As such, it is useful to identify the factors emerging from the case law that are relevant in assessing whether a court should assume jurisdiction against an out-of-province defendant on the basis of damage sustained in Ontario as a result of a tort committed elsewhere. No factor is determinative. Rather, all relevant factors should be considered and weighed together....
[28] The Court of Appeal accepted the trial judge’s conclusion that a real and substantial connection had been established between Nova Scotia and the facts on which the litigation was based. The trial decision (2008 NSSC 378) indicates that the court accepted jurisdiction because of the unfairness in requiring the plaintiff to litigate their claim in Alberta. They had limited financial resources and there was ongoing damage being suffered in the province due to the care required for the severely disabled infant plaintiff.
[29] The Bouch and Muscutt decisions demonstrate a balancing of the principles of fairness and efficiency with those of clarity and certainty when matters of jurisdiction are being considered. That balance shifted significantly away from fairness and towards certainty in the Supreme Court of Canada decision in Club Resorts Limited v. Van Breda 2012 SCC 17. That appeal involved two cases where residents of Ontario were injured or killed while on vacation in Cuba. Legal proceedings were commenced in Ontario against the company which managed the resorts where the incidents took place. The defendant challenged the jurisdiction of the Ontario courts to litigate the claims. The Supreme Court noted that the Ontario Court of Appeal had moved away from the approach previously used in Muscutt. This was because of concerns that it gave too much latitude in exercising judicial discretion to assume jurisdiction thereby undermining the principles of order and predictability (see para. 51).
[30] The Court of Appeal in Club Resorts modified the Muscutt test and reframed it in a fashion which more closely resembled the model legislation from the Uniform Law Conference of Canada on which CJPTA is based. (See paras. 52-53). The Supreme Court of Canada described the conclusion of the Ontario Court of Appeal as follows:
64 In summary, the Van Breda-Charron approach offers a simplified test in which the roles of a number of the factors of the Muscutt test have been modified. In short, when one of the presumptive connecting factors applies, the court will assume jurisdiction unless the defendant can demonstrate the absence of a real and substantial connection. If, on the other hand, none of the presumptive connecting factors are found to apply to the claim, the onus rests on the plaintiff to prove that a sufficient relationship exists between the litigation and the forum. In addition to the list of presumptive and non-presumptive factors, parties can rely on other connecting factors informed by the principles that govern the analysis.
[31] It is clear that the Supreme Court of Canada wanted to move away from a regime where jurisdiction was decided on a discretionary basis to a set of rules which gave a reasonable degree of predictability of outcome. This is reflected in the following passages:
70 The real and substantial connection test does not mean that problems of assumption of jurisdiction or other matters, such as the choice of the proper law applicable to a situation or the recognition of extraprovincial judgments, must be dealt with on a case-by-case basis by discretionary decisions of courts, which would determine, on the facts of each case, whether a sufficient connection with the forum has been established. Judicial discretion has an honourable history, and the proper operation of our legal system often depends on its being exercised wisely. Nevertheless, to rely completely on it to flesh out the real and substantial connection test in such a way that the test itself becomes a conflicts rule would be incompatible with certain key objectives of a private international law system.
…
73 Given the nature of the relationships governed by private international law, the framework for the assumption of jurisdiction cannot be an unstable, ad hoc system made up "on the fly" on a case-by-case basis -- however laudable the objective of individual fairness may be. As La Forest J. wrote in Morguard, there must be order in the system, and it must permit the development of a just and fair approach to resolving conflicts. Justice and fairness are undoubtedly essential purposes of a sound system of private international law. But they cannot be attained without a system of principles and rules that ensures security and predictability in the law governing the assumption of jurisdiction by a court. Parties must be able to predict with reasonable confidence whether a court will assume jurisdiction in a case with an international or interprovincial aspect. The need for certainty and predictability may conflict with the objective of fairness. An unfair set of rules could hardly be considered an efficient and just legal regime. The challenge is to reconcile fairness with the need for security, stability and efficiency in the design and implementation of a conflict of laws system.
…
75 The development and evolution of the approaches to the assumption of jurisdiction reviewed above suggest that stability and predictability in this branch of the law of conflicts should turn primarily on the identification of objective factors that might link a legal situation or the subject matter of litigation to the court that is seized of it. At the same time, the need for fairness and justice to all parties engaged in litigation must be borne in mind in selecting these presumptive connecting factors. But in recent years, the preferred approach in Canada has been to rely on a set of specific factors, which are given presumptive effect, as opposed to a regime based on an exercise of almost pure and individualized judicial discretion.
[32] The Supreme Court then developed a list of presumptive connecting factors. In doing so they expressly excluded fairness and efficiency. This is illustrated by the following comments:
84 I would not include general principles or objectives of the conflicts system, such as fairness, efficiency or comity, in this list of presumptive connecting factors. These systemic values may influence the selection of factors or the application of the method of resolution of conflicts. Concerns for the objectives of the conflicts system might rule out reliance on some particular facts as connecting factors. But they should not themselves be confused with the factual connections that will govern the assumption of jurisdiction.
[33] In settling on a list of presumptive connecting factors the Supreme Court also identified a number of circumstances which would not be sufficient. One of these was the presence of the plaintiff in the jurisdiction (para. 86). The location where damage was incurred was also excluded for the following reasons:
89 The use of damage sustained as a connecting factor may raise difficult issues. For torts like defamation, sustaining damage completes the commission of the tort and often tends to locate the tort in the jurisdiction where the damage is sustained. In other cases, the situation is less clear. The problem with accepting unreservedly that if damage is sustained at a particular place, the claim presumptively falls within the jurisdiction of the courts of the place, is that this risks sweeping into that jurisdiction claims that have only a limited relationship with the forum. An injury may happen in one place, but the pain and inconvenience resulting from it might be felt in another country and later in a third one. As a result, presumptive effect cannot be accorded to this connecting factor.
[34] The Court summarized its conclusions with respect to the presumptive connecting factors and how new factors might be added to that list at paras. 90 and 91:
90 To recap, in a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:
(a) the defendant is domiciled or resident in the province;
(b) the defendant carries on business in the province;
(c) the tort was committed in the province; and
(d) a contract connected with the dispute was made in the province.
(b) Identifying New Presumptive Connecting Factors (sic)
91 As I mentioned above, the list of presumptive connecting factors is not closed. Over time, courts may identify new factors which also presumptively entitle a court to assume jurisdiction. In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include:
(a) Similarity of the connecting factor with the recognized presumptive connecting factors;
(b) Treatment of the connecting factor in the case law;
(c) Treatment of the connecting factor in statute law; and
(d) Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity.
[35] The Supreme Court of Canada makes it clear that jurisdiction does not exist in the absence of a presumptive connecting factor or a new factor established applying the above noted criteria, primarily because of the importance of the objectives of order, certainty and predictability. (See para. 93).
[36] The decision in Club Resorts modifies the approach taken in Bouch and Muscutt. Fairness and inconvenience to the plaintiff are no longer factors to be taken into account in assessing jurisdiction. Under s. 11 of CJPTA, the circumstances giving rise to a presumption of jurisdiction are broader than the common law list set out by the Supreme Court in Club Resorts. If a plaintiff wishes to prove circumstances beyond the legislation to support a claim to jurisdiction they can only do so if they meet the criteria established by the Supreme Court in Club Resorts.
[37] The fairness considerations discussed by Sharpe J.A. in Muscutt, and adopted by the NSCA in Bouch, are not applicable in determining territorial jurisdiction. Once jurisdiction is established these factors will arise as part of the court’s examination of the doctrine of forum non conveniens and s. 12(2) of CJPTA.
Analysis
[38] In the present case Ms. Li has not established any of the presumptive circumstances establishing a real and substantial connection set out in s.11 of CJPTA. She argues that Mr. Walters was soliciting business in Nova Scotia within the meaning of s. 11(e)(iii)(b) or (h) by virtue of his communication with her and the Labour Standards Division. I do not believe those minimal activities amount to a solicitation or carrying on of business in this province.
[39] Ms. Li retained Mr. Walters and his firm to act as her P.E.I. counsel in relation to a proceeding in that province. The alleged act of negligence is the addition of a counter claim which included her lost wages and commissions. I am satisfied, as was the Small Claims Court of Nova Scotia, that her cause of action against Mr. Walters arose in P.E.I.
[40] The effect of Mr. Walter’s alleged negligence is the loss of Ms. Li’s Labour Standards Complaint and the associated statutory lien over the assets of 4150775 Canada Inc. in Nova Scotia. I accept that this means Ms. Li’s damages were suffered in this province. The Supreme Court of Canada has made it clear in Club Resorts that the plaintiff’s residence and the location where damage was incurred are not presumptive factors establishing a real and substantial connection, nor are they listed as such in s. 11 of CJPTA. The relative fairness and efficiency in having Ms. Li’s claim adjudicated in Nova Scotia versus P.E.I. does not create jurisdiction. This issue must be determined by application of the provisions of CJPTA.
Conclusion
[41] Having carefully reviewed all of the materials and listened to the able submissions of Ms. Li and Mr. Dunbar, I have concluded that Ms. Li’s claim does not have a real and substantial connection with Nova Scotia within the meaning of s. 4(e) of the CJPTA. I will therefore issue a stay of proceedings which is the remedy requested by the defendants in their notice of motion.
[42] In light of my decision on jurisdiction I need not consider the question of forum non conveniens.
[43] Normally a successful party is entitled to costs and the defendants made that request as part of their motion. I would note that the defendants’ brief relied on the law set out in Bouch and Muscutt. As a result Ms. Li’s responding material and all of the oral submissions dealt with those cases. Subsequent to the hearing Mr. Dunbar sent a letter enclosing the decision in Club Resorts and indicating that he had overlooked this in his preparation. I provided an opportunity for both parties to make subsequent written submissions on that case.
[44] As is evident from this decision my conclusion on the defendants’ motion is based primarily on the law set out by the Supreme Court in Club Resorts. Since the briefs and hearing were based upon jurisprudence which was significantly changed by a decision which counsel did not provide until after the hearing, I believe it is an appropriate circumstance to deny the defendants their costs.
[45] I would ask Mr. Dunbar to prepare a form of order staying these proceedings and providing that each party shall bear their own costs.
Wood, J