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JURISDICTION - Determination of - Real and substantial connection

Tuesday, August 04, 2020 @ 9:22 AM  

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Appeal by the two foreign defendants from a decision finding that the B.C. court had territorial competence over the appellants. The appellants, roll‑on/roll‑off marine shippers who transported vehicles around the world, were defendants in a class action alleging they were parties to a global price‑fixing conspiracy. The conspiracy caused harm to purchasers of new imported vehicles in B.C., but the appellants did not themselves provide the price‑fixed services to the B.C. market. During the class period, the appellants were amongst the world’s largest operators of roll‑on/roll‑off marine shipping vessels. The appellants did not deny their participation in the conspiracy generally or that they committed the conspiracy acts, nor did they deny the conspiracy caused harm in B.C. The appellants disputed the part of the pleadings claiming that they maintained a business presence in B.C. and shipped vehicles sold in B.C. The appellants argued that the plaintiff did not establish a connecting factor because the pleaded facts, as rebutted, failed to show that the appellants themselves operated a business in B.C. or committed the tort of conspiracy in B.C. The judge found British Columbians, because of the conspiracy and the appellants’ acts in furtherance thereof, paid inflated prices for imported vehicles purchased in B.C. and that the appellants, even assuming they did not ship vehicles to B.C., were liable in B.C. and that a real and substantial connection to B.C. was triggered.

HELD: Appeal dismissed. The chambers judge accurately reviewed the applicable law. It was implicit in his reasoning and conclusion that the appellants had not rebutted the material elements of the plaintiff’s pleadings or presumption of a real and substantial connection once the plaintiff established the proceedings against the appellants concerned a tort committed in B.C. The judge was correct in concluding that the undisputed elements of the plaintiff’s pleadings alleged the appellants were liable in B.C. for civil conspiracy and therefore, the pleadings triggered the presumption of a real and substantial connection.

Ewert v. Nippon Yusen Kabushiki Kaisha [2020] B.C.J. No. 1035, British Columbia Court of Appeal, A.W. MacKenzie, G.J. Fitch and B. Fisher JJ.A., June 29, 2020. Digest No. TLD-August32020002