Docket: CA 174820
NOVA SCOTIA COURT OF APPEAL
[Cite as: Touchburn v. O’Brien, 2002 NSCA 21]
Saunders, Hallett and Hamilton, JJ.A.
BETWEEN:
DR. ANDRÉ TOUCHBURN, DR. FRANK LORD,
DR. CLOVIS EID, and DR. BENOÎT GRENIER
Appellants
- and -
HENRY JOSEPH O’BRIEN
Respondent
THE ATTORNEY GENERAL OF CANADA, representing
Her Majesty the Queen, and MYLES TRENHOLM
Respondents
REASONS FOR JUDGMENT
Counsel: Daniel M. Campbell, Q.C. and Michael J. Messenger for the appellants
Mark Raftus for the respondent O’Brien
Jessica Pereira for the respondents, The Attorney General of Canada and Myles Trenholm
Appeal Heard: January 29, 2002
Judgment Delivered: February 8, 2002
THE COURT: Leave to appeal is granted but the appeal is dismissed
per reasons for judgment of Hallett, J.A.; Saunders and Hamilton, JJ.A. concurring.
HALLETT, J.A.:
[1] This is an application for leave to appeal and, if granted, an appeal from an interlocutory judgment of Justice Wright in which he dismissed the appellants’ application made pursuant to Civil Procedure Rule 11.05(a) for an order setting aside the respondent’s originating notice and statement of claim on the ground that the Nova Scotia Supreme Court was without jurisdiction. Justice Wright found that the Court had jurisdiction to adjudicate the claim made by the respondent that the appellants were negligent in their medical treatment of him while a prisoner at an institution in New Brunswick. The respondent alleges that as a result of an improper medical diagnosis (a failure to diagnose a circulatory problem) he suffered a stroke on May 30th, 1999, while under the appellants’ care. He was released from prison in June, 1999 and returned to his home in Nova Scotia. Since then he has been treated in Nova Scotia for the stroke and other medical problems. He was advised by Dr. Rebelo, an internal medicine specialist, that he had not received proper medical care while incarcerated in New Brunswick. He suffered a so-called second stroke (a TIA) on July 2nd, 2000.
[2] The respondent resides in Nova Scotia; the appellants in New Brunswick. He is 66 years of age, in poor health, which makes travel very difficult, and is in poor financial circumstances.
[3] The Attorney General of Canada and Myles Trenholm did not participate in the appeal.
[4] This Court will not interfere with an interlocutory discretionary order unless wrong principles of law have been applied or a patent injustice would result if the order were allowed to stand (Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143. In Minkoff, Chipman, J.A., after referring to a number of earlier decisions establishing that limitation, stated:
[10] Under these headings of wrong principles of law and patent injustice an Appeal Court will override a discretionary order in a number of well-recognized situations. The simplest cases involve an obvious legal error. As well, there are cases where no weight or insufficient weight has been given to relevant circumstances, where all the facts are not brought to the attention of the judge or where the judge has misapprehended the facts. The importance and gravity of the matter and the consequences of the order, as where an interlocutory application results in the final disposition of a case, are always underlying considerations. ...
[5] The appellants assert that this Court in Oakley v. Barry (1998), 166 N.S.R. (2d) 282; (leave to appeal to Supreme Court of Canada refused by that Court on October 15th, 1998), misinterpreted the Supreme Court of Canada decisions in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077; Hunt v. T&N PLC, [1993] 4 S.C.R. 289; and Tolofson v. Jensen: Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022 and that Justice Wright erred in following Oakley. Alternatively, the appellants argue that Justice Wright erred in his application of Oakley to the facts relevant to the respondent’s claim.
[6] I have considered: (i) the appellants’ submissions, (ii) this Court’s decision in Oakley, and (iii) the decisions of the Supreme Court of Canada in Morguard, Hunt and Tolofson. I have reviewed Justice Wright’s decision.
[7] Justice Wright found that the facts relevant to the respondent’s claim were strikingly similar to the facts in Oakley. I agree. I disagree with the appellants’ submission that there are significant factual differences between the two cases. In my opinion Justice Wright recognized what differences there were and he properly considered them.
[8] Counsel for the appellants has essentially made the same arguments on this appeal that he made to this Court in Oakley. In para. 59 Pugsley, J.A., writing for the Court, summarized the appellant’s submissions as follows:
[59] The appellants submit that the issue before the court in this case is a simple one, namely whether the respondent's residence in Nova Scotia when the action was commenced, and nothing more, is sufficient to ground jurisdiction in the courts of this province. In support of counsel's position our attention is directed to the following cases: MacDonald v. Lasiner (1994), 21 O.R. (3d) 177 (Ont. Gen. Div.); Long v. Citi Club, (Ontario General Division, May, 1995, unreported - Ottawa 82955/94); LeRoy v. Jarjoura, (Ontario General Division, February 1996, unreported - File No. 87982/94); Cook et al. v. Parcel, Mauro, Hultin & Spannstra, P.C., [1997] 5 W.W.R. 299; 87 B.C.A.C. 97; 143 W.A.C. 97 (C.A.)). The trial judges in each of the first three cases, concluded that the situs of the actions were not the convenient forum in which the cases should be tried. This is readily distinguishable from the present case where forum non‑conveniens has been determined against the appellants by Justice Davison.
[9] Justice Pugsley dealt with this argument at paras. 60 and 61:
[60] I agree with Professor Blom, in his reference to the "open‑endedness of the Morguard formula" (at p. 393) and his comment that in trying to determine the meaning of order and fairness, in a jurisdiction simpliciter case, it may be necessary to take into account factors normally considered in a forum non‑conveniens case "in order to avoid injustice" (p. 387). I repeat what Justice La Forest said about the relationship between these considerations in Hunt, supra at 326:
. . . the assumption of and the discretion not to exercise jurisdiction must ultimately be guided by the requirements of order and fairness, not a mechanical counting of contacts or connections.
[61] The material in the present case demonstrates, in my opinion, that the respondent's connection with Nova Scotia is far more than mere residence. The affidavit deposed by Ms. Oakley is unchallenged. No request was made to cross‑examine her before the Chambers judge.
[10] Justice Pugsley concluded his analysis of the questions before him with the following statement:
[95] Nova Scotia was the situs where Nova Scotia physicians disclosed to the respondent that the diagnosis she originally received in New Brunswick was allegedly in error. The respondent continued, and still continues, to reside in Nova Scotia and to be treated by Nova Scotian physicians. There is a significant connection with Nova Scotia being the place where the respondent has suffered her damages.
[96] The concept of fairness in determining jurisdiction should be considered from the point of view of both the respondent, as well as the appellants. While this issue, as well as the issue of juridical advantage, are matters that are usually considered on a forum non‑conveniens issue, it is appropriate and relevant to consider them in this case involving jurisdiction simpliciter. The concept of fairness is overwhelmingly decided in favour of the respondent, whose deposition before the Chambers court remained unchallenged.
[11] Counsel for the appellants has made a strong argument that there is no real or substantial connection between the respondent’s cause of action and Nova Scotia where he has commenced this proceeding. Counsel argues that the tort was completed in New Brunswick in that the duty of care owed by the respondent doctors was allegedly breached in New Brunswick and the damage suffered, that is the May 31st, 1999 stroke, occurred in New Brunswick.
[12] The appellants submit that the mere fact the respondent lives in Nova Scotia and, therefore, suffers in Nova Scotia from the alleged negligence of the appellants does not create a real and substantial connection between the subject-matter of the action and Nova Scotia. This argument accords with a line of lower court decisions in Ontario but does not reflect the opinion of this Court in Oakley. Counsel also submits that Justice LaForest never intended that judges when applying the real and substantial connection test, would consider whether it was fair to the parties that the forum court assume jurisdiction based, in part, on the personal circumstances of the parties as was done in Oakley and by Justice Wright. Counsel for the appellants seems to be saying that Justice LaForest meant only that the real and substantial connection test, developed in Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393 and elaborated on by LaForest, J. in the three decisions referred to, was a test that in itself accommodated the judicial requirement of order and fairness in determining if jurisdiction should be assumed in a proceeding commenced against out of province defendants.
[13] The opposite interpretation was reached by Justice Pugsley in Oakley.
[14] In Morguard, after giving full consideration to all the authorities relevant to determining if a court should assume jurisdiction in a proceeding against an out of province defendant, LaForest, J. stated at p.1108:
... It seems to me that the approach of permitting suit where there is a real and substantial connection with the action provides a reasonable balance between the rights of the parties. It affords some protection against being pursued in jurisdictions having little or no connection with the transaction or the parties. ...
[15] Two years later, LaForest, J., writing for the Court in Hunt, supra, confirmed and expanded upon the views he expressed in Morguard where he stated in Hunt at p. 325:
In Morguard, a more accommodating approach to recognition and enforcement was premised on there being a "real and substantial connection" to the forum that assumed jurisdiction and gave judgment. Contrary to the comments of some commentators and lower court judges, this was not meant to be a rigid test, but was simply intended to capture the idea that there must be some limits on the claims to jurisdiction. Indeed I observed (at p. 1104) that the "real and substantial connection" test was developed in Indyka v. Indyka, [1969] 1 A.C. 33, in a case involving matrimonial status (where sound policy demands generosity in recognition), and that in a personal action a nexus may need to be sought between the subject‑matter and the territory where the action is brought. I then considered the test developed in Moran v. Pyle National (Canada) Ltd., supra, for products liability cases as an example of where jurisdiction would be properly assumed. The exact limits of what constitutes a reasonable assumption of jurisdiction were not defined, and I add that no test can perhaps ever be rigidly applied; no court has ever been able to anticipate all of these. However, though some of these may well require reconsideration in light of Morguard, the connections relied on under the traditional rules are a good place to start. More than this was left to depend on the gradual accumulation of connections defined in accordance with the broad principles of order and fairness ...
[16] At p. 326 in Hunt, supra, LaForest, J. continued as follows:
Since the matter has been the subject of considerable commentary, I should note parenthetically that I need not, for the purposes of this case, consider the relative merits of adopting a broad or narrow basis for assuming jurisdiction and the consequences of this decision for the use of the doctrine of forum non conveniens; see the opposing views of V. Black in the article just cited, and P. Finkle and C. Labrecque, "Low-Cost Legal Remedies and Market Efficiency: Looking Beyond Morguard" (1993), 22 Can. Bus. L.J. 58. Whatever approach is used, the assumption of and the discretion not to exercise jurisdiction must ultimately be guided by the requirements of order and fairness, not a mechanical counting of contacts or connections. ...
[17] A reading of this passage supports the interpretation that LaForest, J. was of the view that whether a superior court is considering if it should assume jurisdiction in a proceeding in that court or in the exercise of its discretion to decline jurisdiction on the basis of forum non conveniens, the court is to be guided by the requirements of order and fairness.
[18] In Tolofson, LaForest, J., writing for the majority, stated at p. 1049:
To prevent overreaching, however, courts have developed rules governing and restricting the exercise of jurisdiction over extraterritorial and transnational transactions. In Canada, a court may exercise jurisdiction only if it has a "real and substantial connection" (a term not yet fully defined) with the subject matter of the litigation; see Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; Morguard, supra; and Hunt, supra. This test has the effect of preventing a court from unduly entering into matters in which the jurisdiction in which it is located has little interest. In addition, through the doctrine of forum non conveniens a court may refuse to exercise jurisdiction where, under the rule elaborated in Amchem, supra (see esp. at pp. 921, 922, 923), there is a more convenient or appropriate forum elsewhere.
[19] In Oakley, this Court decided it would apply:
[46] ... Morguard in a flexible manner and conclude that in this case, there is both a real and substantial connection between the subject matter of the action and the Province of Nova Scotia, as well as a real and substantial connection between the damages caused by the alleged negligence of the appellant physicians, and the defendant hospital, and the Province of Nova Scotia.
[20] This Court, in Oakley, in effect rejected the submission of counsel for the appellants that the concept of order and fairness does not apply when the Court is considering whether it should assume jurisdiction but only applies to the consideration of whether the Court ought to decline jurisdiction on the basis of forum non conveniens. Counsel for the appellants asserts that the statements of LaForest, J. which I quoted herein are obiter and that to interpret the passage as this Court has done in Oakley is to take the passages out of context. I disagree. 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.
[21] Considering the pronouncements by the Supreme Court respecting the underlying principles of order and fairness that guide a court in resolving the question whether to assume jurisdiction or not in a particular proceeding and considering the decision of this Court in Oakley, Justice Wright did not err in determining that the Supreme Court of Nova Scotia had jurisdiction to adjudicate the respondent’s claim. Justice Wright properly considered the issue of fairness to the parties in deciding that there was a real and substantial connection between the cause of action and Nova Scotia as the respondent’s damages, an essential element of the tort, are suffered in this Province where the respondent resides and where he has commenced his action.
[22] Justice Wright was bound by the Oakley decision. He did not misinterpret Justice Pugsley’s decision in Oakley. He properly applied the reasoning of that decision to the facts before him. It cannot be said that in doing so he erred in law.
[23] There is no patent injustice in proceeding with the respondent’s claim in the Nova Scotia Supreme Court. Although the appellate doctors’ language of choice is French they can communicate in English and should the matter proceed to trial, they can testify in French if they choose to do so and their testimony will be translated. When one considers, as did Justice Wright, the problems the respondent would have if he were compelled to proceed with his cause of action in New Brunswick, fairness is on the side of the respondent. We reject the submission of counsel for the appellants that the Nova Scotia court system cannot adequately accommodate the appellants testifying in French.
[24] The appellants concede that if this Court finds that Nova Scotia has jurisdiction simpliciter then as between New Brunswick and Nova Scotia, this Province is the forum conveniens.
[25] Leave to appeal is granted but the appeal from the interlocutory judgment of Justice Wright is dismissed with costs to the respondent O’Brien in the amount of $1,100.00 inclusive of disbursements.
Hallett, J.A.
Concurred in:
Saunders, J.A.
Hamilton, J.A.