Can I launch a BC civil claim against a person who lives outside of BC?

Inter-provincial legal conflicts are common in Canada and can arise in a host of different ways. Common conflicts involve business ventures between people and/or corporations that are based in separate provinces, or matters as simple as a loan given from a BC resident to a resident of another province, that is not repaid. Many people who find themselves in this situation are posed with the question of where to launch their civil claim. Should it be in BC, or in the province where the would-be defendant resides? When do BC courts have jurisdiction? Is proof the the plaintiff resides in BC enough to ground jurisdiction in BC?

In fact, the answer to the latter question is no. The plaintiff’s BC residence is not sufficient on its own to give BC courts jurisdiction over a civil claim.

The Court Jurisdiction and Proceedings Transfer Act (CJPTA) governs whether BC courts have jurisdiction over any given claim. At section 10, the basic rule is as follows:

3  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 counterclaim,
(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 British Columbia at the time of the commencement of the proceeding, or
(e) there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.

Note that under (d) it is sufficient for the defendant to reside in BC at the time of commencement. But this does not help the would-be plaintiff who wants to sue a defendant who resides outside of BC, and who does not want to have to travel to court in another province! Part (e) is the key to establishing jurisdiction. Both the legislation and common law elaborate on the so-named “real and substantial connection” test.

Section 10 of the CJPTA elaborates on what constitutes a “real and substantial connection”:

10 Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based, a real and substantial connection between British Columbia 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 property in British Columbia that is immovable or movable property,
(b) concerns the administration of the estate of a deceased person in relation to
(i) immovable property in British Columbia of the deceased person, or
(ii) movable property anywhere of the deceased person if at the time of death he or she was ordinarily resident in British Columbia,
(c) is brought to interpret, rectify, set aside or enforce any deed, will, contract or other instrument in relation to
(i) property in British Columbia that is immovable or movable property, or
(ii) movable property anywhere of a deceased person who at the time of death was ordinarily resident in British Columbia,
(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 property in British Columbia that is immovable or movable property and the relief claimed is only as to that property;
(ii) that trustee is ordinarily resident in British Columbia;
(iii) the administration of the trust is principally carried on in British Columbia;
(iv) by the express terms of a trust document, the trust is governed by the law of British Columbia,
(e) concerns contractual obligations, and
(i) the contractual obligations, to a substantial extent, were to be performed in British Columbia,
(ii) by its express terms, the contract is governed by the law of British Columbia, 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 British Columbia by or on behalf of the seller,
(f) concerns restitutionary obligations that, to a substantial extent, arose in British Columbia,
(g) concerns a tort committed in British Columbia,
(h) concerns a business carried on in British Columbia,
(i) is a claim for an injunction ordering a party to do or refrain from doing anything
(i) in British Columbia, or
(ii) in relation to property in British Columbia that is immovable or movable property,
(j) is for a determination of the personal status or capacity of a person who is ordinarily resident in British Columbia,
(k) is for enforcement of a judgment of a court made in or outside British Columbia or an arbitral award made in or outside British Columbia, or
(l) is for the recovery of taxes or other indebtedness and is brought by the government of British Columbia or by a local authority in British Columbia.

Some of the above sub-categories are elaborated upon in recent case law. For example, the question of what constitutes a “substantial extent” under 10(e)(i) is discussed in Newman v. Beta Maritime Ltd., [2016] B.C.J. No. 2545. Also in Newman is the principle that BC generally has territorial jurisdiction over tort claims even when the defendant resides elsewhere, provided the damages are suffered by the plaintiff in BC. However, this principle does not apply equally in breach of contract situations.

Also noteworthy is the phrase “Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection…” at the beginning of S. 10. This language allows BC courts to look beyond the legislated subcategories for additional reasons to claim territorial jurisdiction.

Finally, even if BC courts have valid jurisdiction, there are some instances in which one or more provinces also have jurisdiction, in which case a BC court may choose not to exercise territorial competence (i.e it will refuse to hear the case) on the basis of the forum non conveniens doctrine – the doctrine of determining the most appropriate jurisdiction, in circumstances where multiple provinces have jurisdiction. Section 11 of the CJPTA has enshrined the former common law doctrine into statute:

11 (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.
(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including
(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,
(b) the law to be applied to issues in the proceeding,
(c) the desirability of avoiding multiplicity of legal proceedings,
(d) the desirability of avoiding conflicting decisions in different courts,
(e) the enforcement of an eventual judgment, and
(f) the fair and efficient working of the Canadian legal system as a whole.

If you are considering suing a defendant who lives another province, and you anticipate that the defendant would prefer to fight the lawsuit in their province, consider the above law as a starting point when determining which province or provinces have jurisdiction, and what the most appropriate jurisdiction may be. And of course, talk to a lawyer.

Note: None of the above should be relied upon as legal advice or as an accurate account of current law. Legislation and court decisions regularly modify and overturn law in Canada.