C.A. No. 02857
NOVA SCOTIA COURT OF APPEAL
Hallett, Chipman and Freeman, JJ.A.
Cite as: Boucher v. Donovan, 1993 NSCA 121
BETWEEN:
JEFFREY C. BOUCHER ) Kevin Downie and
) Ronald J. Campbell
) for the Appellant
Appellant )
)
- and - )
) Michelle R. Margolian
) for the Respondents
PATRICIA ANN DONOVAN and )
BLAINE MURRAY DONOVAN )
)
Respondents ) Appeal Heard:
) June 16, 1993
)
)
) Judgment Delivered:
) June 16, 1993
)
)
)
)
)
)
)
)
THE COURT: Appeal dismissed with costs in the amount of $500.00 plus disbursements to the respondents per oral reasons for judgment of Hallett, J.A.; Chipman and Freeman, JJ.A. concurring.
The reasons for judgment of the Court were delivered orally by:
HALLETT, J.A.
This is an appeal from a decision of Anderson J. dismissing the appellant's application for an order staying the originating notice issued by the respondents on the ground that Nova Scotia is a forum non conveniens for the action.
The evidence shows that when the action in Nova Scotia was commenced the respondents' counsel believed the appellant was still living in Nova Scotia as he was at the time of the motor vehicle accident giving rise to these proceedings. The accident occurred in Maine, U.S.A. in July of 1990. Unbeknownst to the solicitor for the respondents, who were injured in the accident, the appellant moved from Nova Scotia to Ontario in 1991. The Nova Scotia action was commenced in July 1992. Subsequently an action was also started in Ontario. The respondents live in Ontario; most of the witnesses are in Ontario. No fault legislation is in force in Ontario and not in Nova Scotia.
We have reviewed the record and the decision of Anderson J. We are of the opinion there was sufficient expert evidence adduced by the respondents to meet the burden of proving a legitimate loss of juridical advantage if the action in Nova Scotia were stayed. We are satisfied Anderson J. properly applied the test enunciated in Rockware Glass Ltd. v. MacShannon, [1978] 1 All E.R. 625 as refined in Spiliada Maritime Corp v. Cansulex Ltd.,[1986] 3 All E.R. 843. There is no error of law, nor is there an injustice in Anderson refusing to stay the respondents Nova
Scotia action. The appeal is dismissed. The respondents will be awarded costs in the amount of $500.00 plus disbursements.
Hallett, J.A.
Concurred in:
Chipman J.A.
Freeman, J.A.
C.A. No. 02857
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
JEFFREY C. BOUCHER
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
PATRICIA ANN DONOVAN and )
BLAINE MURRAY DONOVAN ) Hallett, J.A.
) (orally)
Respondents )
)
)
)
)
)
)