It is important to bring any estate claim in the correct jurisdiction, or risk a potentially costly jurisdictional dispute. It is also important not to "attorn" to a jurisdiction if a party plans on disputing the jurisdiction, which is what happened in Wamboldt Estate v. Wamboldt.
Background
The Deceased, formerly of Nova Scotia, died in Ontario, where he had moved approximately three years before his death. The executor of his estate filed a probate application in Nova Scotia. The executor also on behalf of the estate issued an action in Nova Scotia as against the defendant, an attorney under a power of attorney executed in Ontario by the Deceased, for damages arising from his actions in dealing with the Deceased's assets. The defendant was a resident of Alberta.
The defendant's counsel accepted service of the Statement of Claim, then wrote to the executor's counsel indicating his client's intention to dispute the jurisdiction of the Claim under Nova Scotia's
Court Jurisdiction and Proceedings Transfer Act
(CJPTA).
The defendant then
filed a Statement of Defence in Nova Scotia, asserting that the defendant did not submit to the jurisdiction of the Nova Scotia Court and denied all allegations contained in the Statement of Claim.
Thereafter, the defendant filed a motion
arguing
that the appropriate forum was Ontario and that Nova Scotia did not have territorial competence, and even if it did, then he relied on forum non conveniens.
The plaintiff argued that the defendant attorned to the jurisdiction of the court when he filed a defense on the merits of the claim and that Nova Scotia had territorial competence.
Analysis
Justice Lynch found that territorial competence is determined by looking at a number of factors stipulated under section 4 of the CJPTA, including:
- The party's involvement in a related action, at the same court;
- Submission to the jurisdiction of the Court after the proceeding has been commenced;
- Consent of the parties;
- Whether the person involved in the proceeding is ordinarily resident in the place where the Court is established at the commencement of the proceeding; and,
- a real and substantial connection between the parties or the facts of the case and the place where the Court is established.
Section 11 of the CJPTA lists a number of circumstances where a real and substantial connection is presumed to exist.
After determining territorial competence, a Court may decline jurisdiction on the grounds that a Court of another state is a more appropriate forum. The factors to consider in declining jurisdiction include, the convenience of the parties and witnesses, the law to be applied, avoidance of multiplicity of proceedings and conflicting decisions, enforcement of the judgment and the fair and efficient workings of the justice system.
Attornment
The first question to determine here was whether the defendant submitted to the court's jurisdiction during the course of the proceedings.
The Plaintiff argued that Nova Scotia's civil procedure rules
required the defendant to file
a motion to dispute jurisdiction before filing a defence and that the defendant
had attorned to the Court's jurisdiction by filing a defense on the merits of the claim.
Justice Lynch agreed.[1] The defendant's argument that the Plaintiff was not prejudiced by the relief sought was not accepted by the Court. Justice Lynch noted that the appropriate test to determine this issue, is whether the statement of defence goes beyond challenging the jurisdiction of the court.
[2]
In this case, "While the defendant, was clear that he was disputing jurisdiction, he filed a defence on the merits and, by filing that defence, he attorned to the jurisdiction of the Supreme Court of Nova Scotia. Therefore, territorial competence has been proven."
The Court also found, a real and substantial connection to Nova Scotia, given that the
defendant's alleged breach of fiduciary duty occurred there, and the restitutionary obligations, to a substantial extent arose in Nova Scotia, and all of the Deceased's property started in Nova Scotia.
Forum non conveniens
The plaintiff is entitled to have the proceedings in the forum they have chosen unless the defendant shows that another forum is clearly more appropriate. The objective of the Court here, is "to ensure that both parties are treated fairly and the process for resolving their litigation is efficient".
[3]
In this case, the defendant resided in Alberta and would have had to retain counsel in Nova Scotia or Ontario. Witnesses regarding the Deceased's capacity were in both provinces resulting in expenses either way. Witnesses regarding the Deceased's financial holdings were in Nova Scotia. The court also took into consideration that the estate was in a financial position that would prohibit it from continuing the claim in Ontario.
Considering all of the factors, Justice Lynch found that the defendant had not discharged the burden of showing that Ontario was the more appropriate forum.
Takeaways
Once a party delivers a statement of defence disputing the merits of a claim, even with notice of intention to dispute the said jurisdiction, that party will be precluded from challenging the Court's jurisdiction. When relying on the principle of forum non conveniens, the defendant has the burden to prove that a court in another place is the more appropriate forum. Notably, the standard to displace the plaintiff's chosen jurisdiction is high.
[1]
Ibid
, (citing:
Newton v. Waterbury Newton
, 2011 NSCA 34)
[2]
Ibid, (citing: Fraser v. 4358376 Canada Inc., 2014 ONCA 553 at para. 14)
[3]
Ibid, (citing: Armoyan v. Armoyan, 2013 NSCA 99,
para. 273)
