Conflict of Laws – Court Jurisdiction and Proceedings Transfer Act - Forum Non Conveniens – Real and Substantial Connection – Wills and Estates
Scott Kerwin for the Respondents

This was an application by the Respondents under section 11 of the B.C. Court Jurisdiction and Proceedings Transfer Act (the “CJPTA”) for the court to decline jurisdiction over the proceeding on the basis of forum non conveniens. The issue in the proceeding was the administration of a testamentary trust established on the testator's death in 1975. The Respondents both lived in Ontario, and one of them was the executrix of the will in issue. When the executrix suffered a serious stroke, the Petitioner, who was the alternate executor named in the will and who had moved to British Columbia in 2003, asserted his right to act as trustee and moved the trust's assets to British Columbia. In January 2008, the Respondents commenced an action in Ontario to have the Petitioner removed as trustee. In February 2008, the Petitioner commenced proceedings in British Columbia for payment of trustee fees. The Respondents conceded that the court had jurisdiction simpliciter over the proceedings but argued that B.C. was not the appropriate forum for the dispute.

The court, relying on the leading case on the CJPTA – Lloyd's Underwriters v. Cominco Ltd., 2007 BCCA 249 – reaffirmed that section 11 of the CJPTA is a codification of the common law on forum non conveniens rather than a substantive change. It framed the issue as whether the parties and issues in the litigation had a stronger real and substantial connection to B.C. or Ontario, and stated that while the principle of comity was an important one, especially given that the competing jurisdiction was in Canada, it was not determinative. On the facts of the case, the comparative expense for the parties and witnesses, the applicable law, the desirability of avoiding a multiplicity of proceedings, the risk of conflicting decisions, and the fair and efficient working of the Canadian judicial system, all favoured Ontario as the appropriate forum. The court also emphasized that the trust had been administered for over 30 years in Ontario by an Ontario trust company for the benefit of a beneficiary residing in Ontario, which was an extremely strong connection to Ontario. Finally, it referred to the fact that that the Ontario proceedings were more advanced and that there were some procedural defects in the B.C. proceedings. The B.C. proceedings were stayed.