1994 S.H. No. 94‑102428 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: JOHN D. CARROLL and WAG‑AERO INC., body corporate, and AERO FABRICATORS INC., body corporate DECISION HEARD: Before the Honourable Justice D.W. Gruchy on November 10, 1994, in Chambers at Halifax, Nova Scotia DECISION: November 10, 1994 (Orally) RELEASE OF ORAL: November 28, 1994 COUNSEL: Donald L. Shewfelt, Esq., and Timothy J.C. Hall, Esq., Solicitors for the plaintiff Richard F. Southcott, Esq., Solicitor for the defendants GRUCHY, J. (Orally) The plaintiff alleges that in 1988 he purchased aircraft parts from the defendants, such parts being Piper PA‑11 fuselage. The defendant is in the business of manufacturing and selling such parts in Lyons, Wisconsin, U.S.A. The plaintiff constructed the aircraft and first flew it in August, 1991. The aircraft crashed in August, 1992, and the plaintiff alleges the crash was due to faulty and substandard materials used by the defendant in the manufacture or construction of the PA‑11 package. He says that the fuselage was not up to the standards promised by the defendant and was "...not certified as warranted by the Defendants...." He says only the defendant had full knowledge of the materials used in the construction of the fuselage. The defendants have applied either to have the service of the Originating Notice and Statement of Claim set aside as this Court has no jurisdiction, or to have the action stayed on the basis of forum non conveniens. In the application it has described its business as receiving orders by mail order and telephone which are then processed in Wisconsin for either pick up there or delivery to the customer. It distributes catalogues to potential customers. It has no presence in Nova Scotia, other than through the possibility of receiving orders, presumably through its catalogues. According to the defendants the parts used by them are all inspected by various agencies in the United States. Their entire quality control is in the United States. All their employees are in the United States. In this specific case the defendant acknowledges that they received the order from the plaintiff and shipped the items ordered to him in June, 1988. The order was custom manufactured in Lyons, Wisconsin, specifically for delivery to the plaintiff in Nova Scotia. According to the defendants, in order to defend this action it will be necessary to obtain evidence from at least employees, various Aero fabricators concerning the FAA approval, surveillances, manufacturing and inspections, FAA employees, specific FAA inspector and various expert witnesses. According to the defendant, the plaintiff\'s primary cause of action revolves around his loss arising from what he was was negligence in the manufacture and inspection of the aircraft parts. That places some of the evidentiary situs of the action in Wisconsin, or more generally, in the United States. On the basis of the pleadings, that is where "...there is real and substantial connection..." between the ultimate event and this action. (See DeSavoye v. Morguard Investments Limited, 1990 CanLII 29 (SCC), [1991] W.W.R. 217). But the plaintiff complains of his loss in Nova Scotia and shows competing connection with this jurisdiction. He says that the real connection centers around the site of delivery, the residence of the plaintiff, the site of the crash, the location of the aircraft remains and the location of the majority of lay and expert witnesses. The plaintiff's affidavit cites both his view as to the number of witnesses anticipated without specificity. While may have some reservations about the number of witnesses anticipated by the plaintiff, it is not for me to second‑guess his statement. The defendant is in the business of manufacturing and selling aircraft parts all over the United Stated (and Canada). It must be taken to have accepted that its product may ultimately cause injury to its customers. It must, therefore, have assumed that its product "...is likely to be purchased by customer in the jurisdiction where it will be used...." find it very difficult, if not impossible, to distinguish this case from Moran et al v. Pyle National (Canada) Ltd., 1973 CanLII 192 (SCC), [1974] W.W.R. 586. The works of Dickson, J. in that case, found at pp.597‑ 598, are appropriate: Generally speaking, in determining where tort has been committed, it is unnecessary, and unwise, to have resort to any arbitrary set of rules. The place of acting and the place of harm theories are too arbitrary and inflexible to be recognized in contemporary jurisprudence. In the Distillers' case and again in the Cordova case real and substantial connection test was hinted at. Cheshire, 8th ed. p.281, has suggested test very similar to this; the author says it would not be inappropriate to regard tort as having occurred in any country substantially affected by the defendant's activities or its consequences and the law of which is likely to have been in the reasonable contemplation of the parties. Applying this test to case of careless manufacture, the following rule can be formulated: where foreign defendant carelessly manufactures product in foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as result of his carelessness consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant. This rule recognizes the important interest state has in injuries suffered by persons within its territory. It recognizes that the purpose of negligence as tort is to protect against carelessly inflicted injury and thus that the predominating element is damage suffered. By tendering his products in the market place directly or through normal distributive channels, manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods. This is particularly true of dangerously defective goods placed in the inter‑provincial flow of commerce. In this case the defendant had the specific knowledge that goods it had manufactured were to be exported to this jurisdiction. On the basis of the competing affidavits and submission, I conclude that there is a real and substantial connection in this case to both jurisdictions. therefore decline to strike the service of the Statement of Claim and turn to the question of balance of convenience, or forum conveniens. Forum Non Comveniens In this regard it is necessary to determine which jurisdiction is more convenient for the respective parties. must consider the location of prospective witnesses, the location of evidence and the effect those factors will have on the convenience and expense of the trial to each of the parties. It was said in Garson Holdings Ltd. v. Wade (Norman) Co. Ltd. (1991), 111 N.S.R. (2d) 32, at p.34 in quoting English authorities: In order to justify stay two conditions must be satisfied, one positive and the other negative: (a) The defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense, and (b) The stay must not deprive the plaintiff of legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English court. also refer to Monohan et al v. Trahan et al (1993), 1992 CanLII 4497 (NS SC), 117 N.S.R. (2d) 393 in which J.‑G. Castel's Canadian Conflict of Laws (2nd Ed., 1986), 225, were cited: The question whether the forum is appropriate is one of degree and the answer will vary from case to case. Unless the balance is strongly in favour of the defendant the plaintiff's choice of forum should rarely be disturbed. In this case the plaintiff has chosen Nova Scotia as his forum. He has probably done so with recognition of the extreme costs he may face in attempting to obtain the evidence in Wisconsin and elsewhere in the United States to substantiate his allegations and to import that evidence to Nova Scotia. He has presumably balanced that risk of costs against such savings as he may effect by his local witnesses and evidence. In doing so, he has not apparently indulged in forum shopping. Indeed, convincing argument might be made that Wisconsin might be kinder forum for him. No real issue exists as to difficulty in establishing Wisconsin law, and if such issue does in fact arise, that can be addressed no more expensively than calling any other expert. If it develops that the law relative to the contract between the parties is the law of Wisconsin, then this Court may, upon advice, apply that law. The same applies to the law of tort. It is not necessary to outline the parties' competing lists of witnesses. At this early stage of the proceeding, such list is of dubious value. can only conclude there will be witnesses from both jurisdictions. cannot reach any firm conclusion as to which forum will be the least convenient situation unlike that in Ryle (S.G.) Associates Ltd. v. Resources Management International Inc. (1988), 86 N.S.R. (2d) 171. finally refer to Castel's Canadian Conflict of Laws, pp. 233‑234, and the list of factors to be taken into account in assessing the appropriate forum. In exercising its discretion to grant or refuse stay, the court will consider all the circumstances of the particular case, especially: (1) In what province or foreign state the evidence on the issues of fact is situated, or more readily available, and its effect on the relative convenience and expense of trial as between the local and foreign courts; (2) Whether the law of the foreign court applies, and, if so, whether it differs from local law in any material respects; (3) With what province or state either party is connected, and how closely; (4) Whether the defendant genuinely desires trial in the other province or foreign state, or is only seeking procedural advantages; (5) Whether the plaintiff would be prejudiced by having to sue in the foreign court because he would: (i) be deprived of security for his claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with time bar not applicable here; or (iv) for political, racial, religious or other reasons be unlikely to get fair trial; and (6) Whether the foreign court is able to deal with the issues. I have considered all these factors and have concluded that the plaintiffs choice of forum is a reasonable one and should not be disturbed. The application is therefore dismissed. Costs will be costs in the cause. J. Halifax, N.S.
The plaintiff purchased aircraft parts from the American defendant. The plane crashed in Nova Scotia and the plaintiff, claiming negligence by the defendants in the manufacture of the parts, commenced an action in Nova Scotia. The defendants applied to declare Nova Scotia forum non conveniens. Dismissing the application, that there is a real and substantial connection to both jurisdictions and the plaintiff's forum choice appeared reasonable and should not be disturbed.