IN THE SUPREME COURT OF NOVA SCOTIA Citation: Fortune v. Reynolds and Brookville Carriers Inc., 2002 NSSC 288 Date: 20020501 Docket: SP 06094 Registry: Pictou Between: Frank Fortune v. Brian Reynolds and Brookville Carriers Inc. Defendants Judge: The Honourable Justice Hilroy Nathanson Heard: May 1, 2002, in Pictou, Nova Scotia Written Decision: January 22, 2003 (Oral decision rendered May 1, 2002) Counsel: Wayne A. Bacchus, Esq., for the Plaintiff/Respondent Louis Martin Boudreault, Esq., for the Defendants/Applicants Nathanson, J.: (orally) [1] Thank you very much for your submissions. [2] spent good part of last evening reviewing the contents of both your briefs, and my problems this morning arise from the manner in which the application was initiated and with the arguments that were raised in those briefs. [3] The application says that it is for determination of question of law pursuant to C.P. Rule 25.01. Unfortunately, it does not say what the question of law is. When I then read in the brief for the applicant that the sole issue is “Is the plaintiff barred from suing in Nova Scotia regarding the motor vehicle accident which occurred in the Province of Quebec?”, I concluded that that was the question of law, and that seems to be the focus of the arguments that were raised in the brief by the applicant. The application was also for directions as to procedure to govern the future course of conduct of trial, in the alternative to determination of the question of law and, secondly, to dismiss the action because Nova Scotia is a forum non conveniens. The problem is that the applicants appear to have argued determination of question of law, but the respondent has argued forum non conveniens, or at least has focused on them. [4] The applicants did not really make any submissions of substance concerning forum non conveniens, and at the same time the applicants have not provided lot of information about the circumstances surrounding the accident such as whether there were any witnesses and where they may be resident; police whether report was filed; whether anybody investigated the accident; whether any of them are witnesses; whether there are police reports; whether the plaintiff was seen by doctors and, if so, where they are located and whether they might be called to testify at trial. So am in bit of quandary. am trying to make the application and the response to the application fit together. [5] think that you are both right and you are both wrong at the same time because you are both dealing with only part of the law. My understanding of this area of the law is, but it perhaps can be summarized, possibly over-simplified, with the following statements. First, the plaintiff has a prima facie right to select the forum of his choice. Secondly, this right is subject to the defendants’ right to try to establish that the forum chosen is forum non conveniens and that more convenient forum exists elsewhere. Third, the factors to be considered by the Court in making that determination are set out in case law, two of which have been referred to me are O’Brien vs. Attorney General of Canada and Oakley vs. Barrie. [6] The substantive law which governs will be the law of the place where the injury occurred. In this case, it is Quebec, and that, think, is the true ratio of the cases of Tolofson v. Jensen; Lucas (litigation Guardian of) v. Gagnon. [7] The governing procedural law will be the law of the place of trial or lex fori, and that was decided in Brown vs. Marwieh. do not want to get into the law of Quebec. That may be something that more properly should be raised at trial if it is necessary. But would say this, do not consider myself competent to interpret the law of the Province of Quebec. have enough difficulty with the law of the Province of Nova Scotia, and think that if there is trial, and if Quebec law is involved, as think it is, according to the Rule that have just mentioned, somebody is going to have to come forward with an expert witness with respect to the law in existence in the Province of Quebec. [8] am not going to accept the paragraph in Mr. Murphy’s affidavit in which he purports to express an opinion as to what the law is, and am not going to accept counsel’s submissions this morning with respect to that narrow point. [9] So, coming back to the questions which have been raised: Is the plaintiff barred from suing in Nova Scotia? The answer to that is, as I said, the plaintiff has a prima facie right to select the forum of his choice. In this case the plaintiff has chosen Nova Scotia and, following the next rule, unless the defendant, that is the applicants here, can show that Nova Scotia is forum non conveniens, the plaintiff’s choice of jurisdiction of forum will govern. In the absence of so many facts about the circumstances surrounding the accident and the witnesses likely to be called on behalf of the defendant, I find that Nova Scotia is forum conveniens. have considered the factors set out in O’Brien vs. Attorney General of Canada and Oakley vs. Barrie, and have considered the factual submissions that have been made on behalf of the respondent in this application, and that is the conclusion that have reached. [10] It is an entirely different question, as I said, as to what law will apply to a trial in Nova Scotia and, as I have previously stated, the rule is that the substantive law that governs will be the law of the place where the injury occurs. That is the law of Quebec. Counsel are going to have to find some way of not only getting the law, but also interpretations of the law, before the Court in Nova Scotia. do not think you should automatically expect judge presiding at trial in Nova Scotia to be the interpreter of the law of Quebec. [11] If there is a procedural problem, a problem arising from procedural law, before or during trial, that problem will undoubtedly be determined in accordance with the procedural law of the place of trial, and that is Nova Scotia. [12] The notice of application was amended to include an additional claim for costs. do not think that amendment was necessary in Nova Scotia because costs are always in issue. But it does bring to the Court’s attention the necessity of dealing with costs, and that seems to be problem. The application was for: (a) determination of question of law that question has been determined; (b) directions as to the procedure to govern the future course of conduct of the trial believe that has been dealt with; and (c) to dismiss the action for forum non conveniens that was refused. So would say that the applicants have been successful, although the result is not to their liking, am sure. [13] With respect to the determination of question of law and with respect to directions as to procedure, the applicants have been unsuccessful with respect to questions arising from forum non conveniens. [14] If counsel would like to add anything before decide what to do about costs, would be glad to hear them once again. Mr. Martin Boudreault No My Lord, I’ve nothing else to add. The Court Nothing. Mr. Bacchus Yes My Lord we also were seeking costs in our response or in our Memorandum of Law and we tried to avoid court by correspondence and it necessitated this and it of course took time from our firm to prepare this, and as such we believe that some costs should be awarded. The Court Well, don’t know. have nothing before me as to who did what, who agreed to what, and who disagreed with what prior to hearing of the application. In the absence of evidence of that kind, don’t want to base decision on what it might have been. think the applicants had every right to bring this application, probably had duty to do so because of the rather unusual circumstances of the occurrence of the accident in different jurisdiction. am going to grant the applicant some costs even though it has been unsuccessful on the question of forum non conveniens because, in different sense, the applicants have not been successful in getting what they want. am going to keep those costs relatively low. am going to suggest an amount like $400.00.
The plaintiff was injured in a motor vehicle accident in Quebec and commenced an action in Nova Scotia. The applicant applied to determine whether the plaintiff was barred from suing in Nova Scotia concerning the Quebec accident and to dismiss the action on the basis that Nova Scotia was a forum non conveniens. Application to dismiss the action dismissed; the forum conveniens is Nova Scotia. The plaintiff has the prima facie right to select the forum subject to the defendant's right to establish that the forum is non conveniens. In the absence of many facts about the circumstances surrounding the accident and the witnesses likely to be called by the defendant, Nova Scotia is the forum conveniens. The substantive law governing the proceeding will be the law of the place where the accident occurred and the governing procedural law will be the law of the place of the trial.