Legalviews Personal

It is important to consider which province has jurisdiction for a suit, if more than one province seems to be involved in the dispute. That is doubly so if the lawsuit is going to be commenced somewhat close to the end of any arguable limitation period.

Plaintiffs living in Alberta sued over a motor vehicle collision in British Columbia. The plaintiffs lived here and the medical treatments and disability were in Alberta. The plaintiffs sued in Alberta and served the defendant in British Columbia where he lived. The defendant argued that not only was Alberta not the more appropriate or suitable forum, he also argued that Alberta lacked jurisdiction simpliciter. In other words, at common law Alberta had no jurisdiction at all. A mistake on that topic would be fairly easy, as the Supreme Court of Canada some years ago changed the rules for (bare) jurisdiction simpliciter, and substituted vaguer tests. To confuse things further, the tests for the very different topics of jurisdiction simpliciter and more appropriate forum, were given the same name (though somewhat different contents). And some provinces have enacted legislation about jurisdiction simpliciter but others have not.

I cannot comment on the substance of jurisdiction simpliciter in this case, as the plaintiffs later admitted that Alberta lacked it, so the Alberta judge did not analyze it. That of course made the topic of more appropriate forum irrelevant.

The plaintiffs tried an ingenious way out of the problem. British Columbia has legislation allowing the transfer of a lawsuit from another province to British Columbia. Alberta has no such legislation, but there is Alberta case authority saying that Alberta courts have inherent jurisdiction to order that. The judge here declined to do that on these facts and absent Alberta legislation. Furthermore, the whole problem was the British Columbia limitation period, which would bar a new suit in British Columbia. The judge pointed out that the British Columbia legislation appeared to bar keeping the old lawsuit, but running it in British Columbia, if the British Columbia limitation period had expired.

What are the two morals to this story?

1. If a limitation period has apparently been missed, or proceedings are arguably in the wrong court, get high-quality legal advice about whether any repair is still possible, e.g. by trying to attach to or create a lawsuit another way.

2. If litigation may be needed and more than one province (or country) may be involved (or may house the opponent’s assets), get immediate good legal advice about where to sue and in what court and when. Do not give advice about the law of another province. It may have practical issues you have never thought about. If there is no clear certain answer, sue in good time in both jurisdictions or courts. You can always discontinue one suit later when things become clearer.

The recent decision is Kaur v. Retzlaff 2025 ABKB 753, JCE 2203 06895 (AJ Dec 16).

– Hon. J.E. Côté

WHERE TO SUE?