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JURISDICTION - Domestic issues (between Canadian jurisdictions) - Forum conveniens

Monday, December 03, 2018 @ 10:34 AM  

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Motion by the defendant for a stay of the Nova Scotia action on the basis of forum non conveniens. The plaintiff carried out business throughout the Atlantic provinces, primarily in Nova Scotia. The defendant was an extra-provincial company registered in Nova Scotia and carried on business throughout the Atlantic provinces. The dispute related to a renovation project at a resort in New Brunswick. The plaintiff retained the defendant to perform various design services and claimed negligence and breach of contract, alleging the defendant’s designs were deficient and delivered past the required date, necessitating various change orders and affecting the schedule and overall costs of the project. AG, a construction management company on the project, brought an action against the plaintiff in New Brunswick for monies owing. The plaintiff filed a defence, counterclaim and third party claim against the defendant. The defendant filed a defence and counterclaim for monies owing. The plaintiff amended its claim in Nova Scotia to join AG as a defendant, but then discontinued the claim against AG because of the forum selection clause in the contract between the plaintiff and AG.  

HELD: Motion allowed. The defendant’s affidavits showed that most on-site work was performed by companies located in New Brunswick but did not establish which witnesses would be called and where they were located. The plaintiff significantly overstated the additional inconvenience and expense of trying the action in New Brunswick but, given a lack of evidence about the defendant’s witnesses, the comparative convenience factor favoured Nova Scotia. The plaintiff had known since it added AG as a defendant in Nova Scotia and filed the third party claim against the defendant in New Brunswick that jurisdiction was at issue, and chose not to amend its pleadings, so could not now argue that the limitation period was a factor, and s. 21 of the Limitation of Actions Act and a waiver by the defendant would address these concerns anyway. The law would not prevent the plaintiff from pursuing a claim in New Brunswick. The plaintiff’s claims against the defendant and AG were inextricably intertwined. While the particulars of the negligence and breach of contract claims were distinct, the plaintiff attributed a similar period of delay to both defendants and claimed the same damages from each. If the Nova Scotia action was not stayed, there could be conflicting decisions and the distinctly unfair possibility of double recovery for the plaintiff. The claims needed to be heard by the same court and, since the plaintiff and AG were bound by their forum selection clause, New Brunswick was clearly the more appropriate forum. The stay was conditional on the defendant providing, and the New Brunswick court accepting, a waiver of any limitation defence.

Charlotte County Hospitality Partnership v. Coles Associates Ltd., [2018] N.S.J. No. 420, Nova Scotia Supreme Court, J.M. Arnold J., October 16, 2018. Digest No. TLD-December32018002