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Duncan, by his Litigation Guardian Martinez et al.
Neptunia Corporation Ltd. et al.
J. Gardner Hodder, for plaintiffs.
Lise G. Favreau, for defendants.
 B. WRIGHT J.:—The defendants bring a motion to stay the plaintiffs’ Ontario action. The stay is requested pursuant to rule 21.01(3)(a) [Rules of Civil Procedure, R.R.O. 1990, Reg. 194] on the ground that the facts giving rise to the action have no real or substantial connection to Ontario and, therefore, Ontario courts have no jurisdiction.
 The stay is also requested pursuant to rule 17.06(1)(b) on the ground that China is the more convenient forum for the trial.
 Any judge faced with deciding these two issues faces a daunting task. The case law is in conflict: the concept of “real and substantial connection” is ill defined. The criteria for determining jurisdiction and the criteria for determining the more convenient forum are not the same but similar. (See Schedule attached.) The concepts of jurisdiction and convenient forum are entwined.
 The concepts of jurisdiction and convenient forum are supposedly separate and distinct concepts to be considered and kept in watertight compartments. However, a review of the cases displays how difficult it is not to let the compartments leak.
 Which is the paramount concept, jurisdiction or convenient forum? We usually consider jurisdiction as paramount. If there is no jurisdiction that is the end of the matter.
 However, as in this case, where damages are sustained by a plaintiff in Ontario, caused by a foreign defendant, should jurisdiction be paramount? Or, should it be assumed that both jurisdictions have jurisdiction and the paramount consideration, in the best interests of the parties, should be, which jurisdiction is the more convenient forum.
 Perhaps in the struggle to separate jurisdiction and convenient forum, they were not intended to be separated. Perhaps, the entwined criteria should define which is the more convenient forum, which should be the paramount consideration. In other words, in what jurisdiction will justice be best served?
 Mr. Duncan, an Ontario resident, entered into a two-year employment contract with the defendants to work at a plant in Baoding, China. The contract was from November 1, 1995, to October 31, 1997. The contract was extended for the period from November 1, 1997, to March 31, 1998.
 One of the terms of the contract provided that the employer provide Mr. Duncan with furnished accommodation. On March 10, 1998, while residing in the furnished accommodation, Mr. Duncanwas allegedly poisoned by gas leaking into the apartment.
 Mr. Duncan was taken to a Baoding hospital and on March 12 was transferred to a Beijing hospital from which he was discharged on March 20. It seemed as though he had recovered; however, on April 3 and 4 he showed some signs of confusion and forgetfulness. On April 5, he returned to Ontario where his health deteriorated rapidly. He existed in a vegetative state in a nursing home, where he died January 13, 2001.
(h) Damage sustained in Ontario—in respect of damage sustained in Ontario arising from a tort, breach of contract, breach offiduciary-duty or breach of confidence wherever committed.
We are of the opinion that it was the intention of the Legislature, when it amended Rule 25(1)(h), to enable the people of Ontario to use their own Courts more easily to sue tort‑feasors for damage sustained in Ontario, as a result of torts that were committed elsewhere: see John Ewing & Co. Ltd. v. Pullmax (Canada) Ltd. et al. (1976), 13 O.R. (2d) 587, 1 C.P.C. 251. Earlier decisions based on the old Rule had required Ontario residents to pursue foreign tort-feasors, such as negligent manufacturers, abroad, often causing considerable financial hardship to the victims: see Anderson v. Nobels Explosive Co. (1906), 12 O.L.R. 644; Paul v. Chandler & Fisher Ltd. (1923), 54 O.L.R. 410,  2 D.L.R. 479. The Legislature decided to remedy this situation by facilitating access to the Courts of Ontario. Consequently, our Courts should permit Ontario residents to sue for foreign torts where the facts can be fairly brought within the languageof the Rule.
Before the 1975 amendments, Rule 25 provided for a number of types of claims in respect of which service out of Ontario of a writ ofsummons or notice of writ might be allowed. The critical words ofthe Rule were: “Service out of Ontario… may be allowed…” and then the Rule specified a number oftypes of claims.
26. An application to allow service out of Ontario may be made ex parte and shall be supported by an affidavit stating that in the belief of the deponent the applicant has a right to the relief claimed, and showing in what place or country the person to be served is or probably may be found, and whether he is a British subject or not, and that the case is a proper one for service out of Ontario under these rules.
The effect of the 1975 amendment to the Rules is that an order for service outside the jurisdiction is no longer required. As there is no longer a need to apply for an order, Rule 26 containing the requirement for a supporting affidavit was repealed [O. Reg. 106/75, s. 5]. The critical words of Rule 25 now read: “…a party to an action… may be served out of Ontario…” in the types of cases listed in the subclauses of the Rule. The new Rule gives a party an absolute right to effect service out ofOntario in the cases specified.
Counsel for the applicant also referred to the concern expressed by the Courts in the cases decided under the Rules before 1975, with a reluctance to infringe the sovereignty of foreign states and with a requirement that the applicant show himself to be not only within the letter, but the spirit, of the Rules permitting service outside the jurisdiction. The judgments of the Court of Appeal and ofMcRuer, C.J.H.C. [ O.R. at p. 325], in Empire-Universal Films Ltd. v. Rank, and the other authorities referred to therein, make it clear that these considerations were also matters which arose in connection with the exercise by the Court of the judicial discretion which it possessed under the old Rules.
The weight to be attached to those considerations under the circumstances in which international and interprovincial business is now conducted has been questioned in recent cases. It appears that the persons enacting the 1975 amendments decided that such considerations should give way completely to the need for simplifying our procedure and avoiding time-consuming and wasteful interlocutory proceedings.
 Based on the history set out in the above cases, the purpose of rule 17.02(h) was to facilitate the use of Ontario courts for actions based on damage sustained in Ontario, as a result of a tort, breachof contract, breach of fiduciary duty or breach of confidence that was committed elsewhere. The provision to allow service ex juris without leave was intended to simplify procedure and avoid unnecessary court proceedings. This change providing service without leave in many instances as well as the expansion of the list of grounds for service ex juris can both be argued to recognize the expanding “circumstances in which international and interprovincial business is now conducted”, as referred to by Southey J. Our current era of “globalization” and internationalization, including such developments as growing numbers of free trade agreements and human rights treaties as well as the development of alien tort claim statutes and an international criminal court, would make that argument more relevant now than in 1976.
The plaintiff Vile, although injured in Quebec as a result of a tort committed in Quebec, suffered damage in Ontario where he returned to the hospital for six months and to his home following the accident. Vile incurred medical expenses in Ontario; he underwent pain and suffering in Ontario and still does; he was deprived of many of the amenities of his life and is still being deprived of them; he suffered loss of wages and of business profits; and his partner also lost financially as a result of the injury. All of these items of damage were sustained in Ontario even though the accident and theinitial damage occurred in Quebec.
 Subsequent to the Divisional Court’s decision in Vile v. Von Wendt, Poirier v. Williston reflex, (1980), 29 O.R. (2d) 303, 113 D.L.R. (3d) 252 (Div. Ct.), affirmed reflex, (1980), 31 O.R. (2d) 320, 118 D.L.R. (3d) 576 (C.A.) held that where a resident of Ontario is injured outside Ontario and returns to Ontario with pain, suffering, disability and loss of ability to earn an income, he has sustained damage in Ontario. See also: Power v. Probert (1987), 19 C.P.C. (2d) 142 (Ont. Dist. Ct.) where it was held that personal injury damages suffered in Ontario are “sustained in Ontario” even though caused by an accident outside Ontario.
 However, the defendants argue that sustaining damages in Ontario caused by a foreign defendant is not sufficient to confer jurisdiction on an Ontario court. In order for an Ontario court to exercise jurisdiction, the facts of the case must comply with the “real and substantial connection” test.
The business community operates in a world economy and we correctly speak of a world community even in the face of decentralized political and legal power. Accommodating the flow of wealth, skills and people across state lines has now become imperative.
The difficulty, of course, arises where, as here, the defendant was outside the jurisdiction of that court and he was served ex juris. To what extent may a court of a province properly exercise jurisdiction over a defendant in another province? The rules for service ex jurisin all the provinces are broad; in some provinces, Nova Scotia and Prince Edward Island, very broad indeed. It is clear, however, that if the courts of one province are to be expected to give effect to judgments given in another province, there must be some limits to the exercise of jurisdiction against persons outside the province.
It seems to me that the approach of permitting suit where there is a real and substantial connection with the action provides a reasonable balance between the rights of the parties. It affords some protection against being pursued in jurisdictions having little or no connection with the transaction or the parties. In a world where even the most familiar things we buy and sell originate or are manufactured elsewhere, and where people are constantly moving from province to province, it is simply anachronistic to uphold a “power theory” or a single situs for torts or contracts for the proper exercise of jurisdiction.
Moran v. Pyle National (Canada) Ltd.
 The Supreme Court in Morguard quotes from Dickson J. in Moran v. Pyle National (Canada) Ltd.(1973), 1973 CanLII 192 (S.C.C.),  1 S.C.R. 393, 43 D.L.R. (3d) 239, in referring to the real and substantial connection test. The issue in Moran was the determination ofthe location where a tort had been committed. The plaintiffs were suing the manufacturer of a light bulb that allegedly caused Mr. Moran’s death. The accident occurred in Saskatchewan. The defendant’s manufacturing and assembling operations were based in Ontario and the United States and the defendant did not sell its products to consumers directly. The Saskatchewan Queen’s Bench Act [R.S.S. 1965, c. 73] prohibited a plaintiff from bringing an action based on damages in respect of a tort committed outside the province unless leave of the court was granted. The Fatal Accidents Act [R.S.S. 1965, c. 109] permitted an action to be brought if the wrongful act, neglect or default would have entitled the person injured to maintain an action if death had not ensued. Because of the wording of these provisions, the rightof the plaintiff to maintain the action required a determination of the location of the commission ofthe tort.
[W]here a foreign defendant carelessly manufactures a product in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as a result of his carelessness a 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.
 Professor Hogg in Constitutional Law of Canada, loose-leaf, vol. 1 (Scarborough: Carswell, 1997) at pp. 13-16 limits this principle fromMoran to the idea that “the occurrence of damage in a province is not by itself sufficient to subject an out-of-province defendant to the jurisdiction of the province’s courts, but where it is accompanied by some business activity on the part of the defendant within the province,” including indirect activity, “then the defendant may be subjected to the jurisdiction of the courts where the damage occurred”.
 It is interesting to note that in setting out the principle to be applied, Dickson J. emphasized that the “purpose of negligence as a tort is to protect against carelessly inflicted injury and thus that the predominating element is the damage suffered” (p. 409 S.C.R., p. 251 D.L.R.). However, the injury inMoran was not ongoing. When the harm was caused by the light bulb, the damage was done simultaneously and Mr. Moran was killed. The specific nature of the fact situation is demonstrated by Professor Hogg’s interpretation in the preceding paragraph. In Mr. Duncan’s case, the damage caused by the gas leak continued and intensified in a different location than where the leak occurred. It is not clear that Dickson J.’s comments about the damage suffered should be understood to apply to this different fact situation. The context ofproduct manufacturer’s liability is not applicable to theDuncan case.
 The real and substantial connection test presented in Morguard was applied by the Supreme Court in Hunt v. T & N plc,1993 CanLII 43 (S.C.C.),  4 S.C.R. 289, 85 B.C.L.R. (2d) 1. In Hunt, the plaintiff, a resident of British Columbia, was exposed to asbestos fibres in his work and suffered from cancer. He sued the defendant Quebec companies who manufactured the fibres. An application to strike the statement of claim and a challenge to the jurisdiction failed. When the plaintiff requested production of documents, the defendants did not respond. Eventually, the plaintiff applied to the Supreme Court of British Columbia for an order compelling the productionof the documents. The court held that the provisions of the Quebec Business Concerns Records Act [R.S.Q., c. D-12] provided lawful excuse under the British Columbia rules of court such that the defendants could refuse to comply with the request for documents.
 The Supreme Court of Canada considered the constitutionality of the Quebec Business Concerns Records Act. The court determined that “[t]he problem in the end, then, involves issues of jurisdiction and whether that jurisdiction should be exercised” (p. 315). The constitutional validity of the Quebec statute was directly argued before the court. In its analysis, the court held that a province must respect the minimum standards of order and fairness addressed in Morguard when enacting legislation that may have some effect on litigation in other provinces. The “character of our constitutional arrangements” requires each province to give full faith and credit to judgments of the courts of other provinces. The court held that the considerations in Morguard are “constitutional imperatives” (p. 324 S.C.R.) which are related to the determination of a proper exercise of jurisdiction.
In Morguard, a more accommodating approach to recognition and enforcement was premised on there being a “real and substantial connection” to the forum that assumed jurisdiction and gave judgment. Contrary to the comments of some commentators and lower court judges, this was not meant to be a rigid test, but was simply intended to capture the idea that there must be some limits on the claims to jurisdiction… The exact limits of what constitutes a reasonable assumption ofjurisdiction were not defined, and I add that no test can perhaps ever be rigidly applied; no court has ever been able to anticipate all of these.
Whatever approach is used, the assumption of and the discretion not to exercise jurisdiction must ultimately be guided by the requirements of order and fairness, not a mechanical counting ofcontacts or connections.
 A little over a year after deciding Hunt, the Supreme Court released its judgment in Tolofson v. Jensen, 1994 CanLII 44 (S.C.C.),  3 S.C.R. 1022, 120 D.L.R. (4th) 289. This case involved car accidents where injured passengers brought actions in their home provinces rather [than] in the province where the accident occurred and the defendant was resident.
As Morguard and Hunt also indicate, the courts in the various states will, in certain circumstances, exercise jurisdiction over matters that may have originated in other states. And that will be so, as well, where a particular transaction may not be limited to a single jurisdiction. Consequently, individuals need not in enforcing a legal right be tied to the courts of the jurisdiction where the right arose, but may choose one to meet their convenience. This fosters mobility and a world economy.
To prevent overreaching, however, courts have developed rules governing and restricting the exercise of jurisdiction over extraterritorial and transnational transactions. In Canada, a court may exercise jurisdiction only if it has a “real and substantial connection” (a term not yet fully defined) with the subject-matter of the litigation: see Moran v. Pyle National (Canada) Ltd. 1973 CanLII 192 (S.C.C.), (1973), 43 D.L.R. (3d) 239,  1 S.C.R. 393,  2 W.W.R. 586; Morguard, supra; and Hunt, supra. This test has the effect of preventing a court from unduly entering into matters in which the jurisdiction in which it is located has little interest. In addition, through the doctrineof forum non conveniens a court may refuse to exercise jurisdiction where, under the rule elaborated in Amchem, supra (see especially pp. 111-13), there is a more convenient or appropriate forum elsewhere.
 Morguard, Moran, Hunt and Tolofson all dealt with interprovincial matters. The nature of the Canadian federation and interprovincial mobility formed an important context for the decisions reached. However, it would seem logical that the test for an appropriate exercise ofextraterritorial jurisdiction on the international level should be at least as high a standard as the test applicable between provinces.
Is the Real and Substantial Connection Test the Proper Test?
With the subsequent decision in Hunt v. T & N plc, 1993 CanLII 43 (S.C.C.),  4 S.C.R. 289, it now seems clear that the Morguardprinciples are “constitutional imperatives” applying to the provincial legislatures and the courts. This raises sharply the question of what is the appropriate test to be applied in determining the validity of rules for service out of the jurisdiction. In general terms what appears to be required is a real and substantial connection between the province and the litigationor defendant. It is suggested that the exact nature of relevant test may be critical to the future effectiveness of the rules for service out of the jurisdiction.
[R]ules enacted or authorized by a provincial Legislature must come within the provincial legislative power over “the administration ofjustice in the province” in s. 92(14) of the Constitution Act, 1867. As the words “in the province” emphasize, the service ex juris rules must not exceed the territorial limit on provincial legislative power. It is not clear what that limit is… While the test has not been definitively articulated by the Supreme Court of Canada, it now seems clear that the constitutional rule of extraterritoriality requires that the only causes of action in respect of which service ex juris is available are those in which there is a substantial connection between the defendant and the forum province.
 Holmested and Watson, supra, at p. 17-10, prefer the test of a substantial connection between “the adjudicating forum and the subject-matter of the action”. The phrases “subject‑matter of the action” and “damages suffered” are both used in Morguard in reference to the required connection. The wording requiring a connection between the defendant and the province is contained in a quotation from Professor Hogg at p. 185 B.C.L.R., p. 1109 S.C.R. of the Morguard decision.
The Constitution of Canada does not confer upon the provinces the power to legislate extraterritorially. Therefore, territoriality can be used as an instrument of constitutional control over provincial laws that have a significant impact outside the province. The courts of a province exercise jurisdiction over nonresident or absent defendants by serving them ex juris. This practice is valid under section 92(13)of the Constitution Act with respect to matters falling within the legislative competence of the provinces. When the subject matter of the proceedings is not within the provincial legislative competence, judicial jurisdiction may still exist if it involves the “administration ofjustice in the province” which is a head of provincial legislative power under section 92(14) of the Constitution Act. A province must have a substantial provincial interest to protect in order to subject a nonresident to its legislative and judicial jurisdiction.
In Hunt v. T. & N. plc, the Supreme Court of Canada gave constitutional status to the principles expounded in Morguard. Therefore, the requirement of a “real and substantial connection” has become the absolute constitutional limit on the power of each province to confer judicial jurisdiction on its courts… The requirement of a real and substantial connection places a limit on the provincial rules ofprocedure since the provincial power to legislate with respect to service in juris or ex jurisrequires some serious contacts with the province.
It is common ground that the test to be applied in determining whether the B.C. Supreme Court has jurisdiction over these proceedings is whether there is a real and substantial connection between the court and either the defendant (respondent firm) or the subject-matter of the litigation (occasionally referred to in the authorities as the “transaction” or the “cause of action”). Jurisdiction founded on this basis is referred to as “jurisdiction simpliciter”.
 Several cases since Morguard have held that the real and substantial connection test must be considered when considering a motion to set aside service ex juris under rule 17.02(h). The difficulty with these cases is that none of them clearly explain the basis on which they are applying this test and whether they are considering the constitutionality of rule 17.02(h) as a whole or finding that the circumstances of the case before them no longer fits under rule 17.02(h) given the real and substantial connection requirement.
 Several Superior Court of Justice decisions have applied the real and substantial connection test in the context of rule 17.02(h). These decisions are briefly summarized below. A Manitoba decision applying the real and substantial connection test to a rule similar to Ontario’s rule 17.02(h) is also reviewed.
 Cunningham J. held in MacDonald v. Lasnier 1994 CanLII 7340 (ON S.C.), (1994), 21 O.R. (3d) 177 (Gen. Div.) that although the plaintiff’s claim clearly fit within rule 17.02(h), the Supreme Court’s decision in Morguard requires a “real and substantial connection”. The decision stated that there was not a sufficient link between pain and suffering endured in Ontario and the actions of the defendants in Quebec. The lack of a real and substantial connection appears to amount to an assertion that the interpretation of “damage” in Vile such that it includes pain and suffering in Ontario has “dramatically opened the door to lawsuits in Ontario dealing with tortious conduct in a foreign jurisdiction” (p. 181).Morguard has placed limits on such actions in requiring a real and substantial connection, and pain and suffering in Ontario does not meet this test. In the end, the court stayed the action for lack ofjurisdiction.
 The constitutionality of rule 17.02(h) was not argued in MacDonald. The court’s reasoning focused on the legality of interpreting damage to include pain and suffering. As noted by Castel in Canadian Conflict of Laws, supra, at p. 55, note 25, the decision to stay the action rather than dismiss it implies that rather than holding that rule 17.02(h) is unconstitutional, meaning Ontario courts do not have jurisdiction over actions relating to damage suffered in Ontario, the ruling is an interpretation of the rule such that it does not include pain and suffering in Ontario.
 Binks J. in Long v. Citi Club,  O.J. No. 1411 (Gen. Div.) simply cites a list of cases that have required a real and substantial connection and states that the plaintiff “must do more than allege that he has suffered damage in the forum province”. The judge asserts that the real and substantial connection must be between “Ontario and the defendant, such that it makes it reasonable to infer that the defendant has voluntarily submitted himself or herself to the risk of litigation in the courts ofthe forum province”. Given the interpretations of the real and substantial connection test inMorguard and the secondary authorities noted below, it is clear that a real and substantial connection between the forum province and the subject matter of the litigation, not necessarily the defendant, is sufficient to meet the test.
 Jean-Jacques v. Jarjoura,  O.J. No. 5174 (Gen. Div.) relies directly on MacDonald. Métivier J. first lists the many connections between the defendant and Quebec, then considers the issue of the plaintiff’s pain and suffering in Ontario. Without further explanation, the court states: “Applying the ‘real and substantial connection’ test to the facts herein and considering all factors, I find no such real and substantial connection exists between this action and the province of Ontario.” This decision is not helpful in determining how the court applied the real and substantial connection test. The list ofthe defendant’s connections with Quebec makes the test look like a balance of the connections with Quebec and the connections with Ontario, a process more suitable to the consideration of most convenient forum.
 Swinton J. in Leufkens v. Alba Tours International Inc. 2001 CanLII 28038 (ON S.C.), (2001), 53 O.R. (3d) 112,  O.J. No. 644 (S.C.J.) held that Morguard has changed the law and that cases relying on rule 17.02(h) before the Morguard decision are no longer to be followed. Swinton J. refers toMorguard, Moran, Hunt and Tolofson in reasoning that there is a distinction between jurisdiction and the doctrine of forum non conveniens, and that jurisdiction is to be determined by assessing whether there is a real and substantial connection between the forum and the subject matter of the litigation(para. 15). At para. 29, she follows the cases that hold that the mere fact that the plaintiff continues to suffer damages in Ontario after sustaining an injury as a result of a tort committed outside the jurisdiction does not create a real and substantial connection between Ontario and the action.
 There is also the case of Lemmex v. Bernard reflex, (2000), 49 O.R. (3d) 598 (S.C.J.), in which it was held that the third parties were properly served without leave pursuant to rule 17.02(h). McKinnon J. cites Morguard and purports to apply the real and substantial connection test; however, McKinnon J. [at p. 604] does not distinguish between the test for jurisdiction and the assessment of the most convenient forum. The real and substantial connection test is held to involve an assessment of “what is reasonably in the contemplation of the foreign supplier, be it of goods or services” [Emphasis in original]. He then finds that it was reasonably in the contemplation of an independent contractor providing tour services in Grenada that a North American may suffer serious injury in the event of a bus accident in Grenada. The Divisional Court has granted leave to appeal the decision of McKinnon J.: Lemmex v. Bernard reflex, (2000), 51 O.R. (3d) 164. In her reasons for granting leave, Aitken J. refers to the blending of the tests for jurisdiction simpliciter and forum non conveniens (p. 173). The decision is also criticized for addressing what was in the reasonable contemplation of the service providers without any evidence on that point (pp. 175-76).
 These decisions provide little explicit reasoning as to why rule 17.02(h) is being interpreted to exclude pain and suffering in Ontario and other damages such as loss of income and medical expenses. MacDonald is cited as the source for this interpretation in Leufkens and inJean-Jacques.
 Although in the Macdonald, Leufkens and Jean-Jacques cases the courts found that Ontario did not have jurisdiction because the “real and substantial connection” test had not been met, I suggest the more important finding in all three cases was that the foreign jurisdiction was the more convenient forum.
 The most recent Ontario case is 1248671 Ontario Inc. v. Michael Foods Inc. reflex, (2000), 51 O.R. (3d) 789 (S.C.J.). Aitken J. puts a different slant on the issue of jurisdiction.
 Aitken J. states that where damage is sustained in Ontario, rule 17.02 authorizes service ex juris.However, if it is shown that the real and substantial connection test has not been met, then Ontario should “decline” jurisdiction. If the real and substantial test is met, Ontario would also “decline” jurisdiction if Ontario was not the more convenient forum.
 In my view, the cases since Morguard with respect to the real and substantial connection test deal with jurisdiction simpliciter and not the “declining” of jurisdiction.
 Aitken J.’s interpretation of the real and substantial connection test is not helpful to an Ontario plaintiff. The plaintiff would go to the expense of serving a claim on a foreign defendant plus the costof a motion to set aside the service ex juris only to find that the Ontario court decided to “decline” jurisdiction.
 In the Michael Foods case, Aitken J. found that the real and substantial connection test was met and that Ontario was the more convenient forum. Aitken J. uses some of the same factors in deciding the real and substantial connection test to decide that Ontario was the more convenient forum. This points up the difficulty in separating the issue of jurisdiction from the question of which jurisdiction is the more convenient forum.
There is no question in my mind that, in this case, however the term “real and substantial connection” may be defined, Manitoba has no real and substantial connection with the subject matter of the lawsuits commenced in Manitoba. The liability issue has absolutely no connection with Manitoba. The only connection between the plaintiffs and Manitoba is that the plaintiffs live in Manitoba and that the two injured plaintiffs have endured pain and suffering here and have received, and continue to receive, medical treatment in Manitoba. Apart from these two factors, the real and substantial connection with the subject matter of the lawsuits is with the Province of Ontario. It is there the accident occurred, the defendants live there, and the alleged wrong is governed by the lawof Ontario.
In Ontario, similar, although more restrictive, wording has been held to permit actions to be brought by Ontario residents in Ontario where the only linkage is that the plaintiff endured pain and suffering in Ontario—see MacDonald v. Lasnier 1994 CanLII 7340 (ON S.C.), (1994), 21 O.R. (3d) 177 (Gen. Div) at 181.
The second ground under s. 62.02(4)(a) [the Rules of Civil Procedure state on what grounds leave to appeal may be granted] relied on by Huggins and Bernard is that McKinnon J. decided Ontario had a real and substantial connection to the subject matter of the action based only on the fact that the plaintiffs are resident in Ontario and continue to suffer damages in Ontario, and there are cases both in Ontario and elsewhere in Canada which state that these factors are insufficient to establish jurisdiction in the forum. The cases ofMacDonald v. Lasnier, supra; Long v. City Club, supra; Jean-Jacquesv. Jarjoura, supra, and Negrych v. Campbell’s Cabins (1987) Ltd., supra, to which I was referred by counsel for Huggins and Bernard, taken at their highest, stand for the proposition that the mere presence of a plaintiff in a forum and the fact that the plaintiff is allegedly continuing to suffer pain and suffering in that forum or is continuing to receive medical treatment in that forum for an injury sustained elsewhere is insufficient to create a real and substantial connection to that forum justifying the assumption of jurisdiction in an action relating to the injury.
 Swinton J. in Leufkens, supra, at para. 14, states that Trepanier and Dunlop deal exclusively with the issue of convenient forum, not jurisdiction. These decisions did deal with jurisdiction in their findings that the claims fell within rule 17.02(h). It would seem that Swinton J. is making the same point that she makes in reference to Vile: that the court did not consider jurisdiction simpliciter. Based on this argument then, any of the cases that address the jurisdictional issue only in terms of the parameters of rule 17.02(h) cannot be followed since they did not consider the real and substantial connection test.
If the Real and Substantial Connection Test is the Proper Test, Can it be Applied in a Manner Consistent with the Interpretation of Rule 17.02(h) in Poirier v. Williston?
The real and substantial connection to the province or territory when its courts exercise jurisdiction over litigants, a test designed to give substance to order and fairness, is neither very demanding, nor should it be applied rigidly, although there must be limits on claims to jurisdiction. In Morguard, the Supreme Court refrained from determining these limits as no court can anticipate what constitutes a reasonable assumption of jurisdiction. Traditional rules of jurisdiction are a good place to start. Each one must be defined in accordance with the broad principles of order and fairness. This approach is a constructive one. However, it should not be restricted to interprovincial litigation. The Supreme Court speaks of a real and substantial connection, not the most real and substantial connection, therefore a minimal connection with the province may be sufficient as long as it is not superficial. This is certainly the case with respect to most of the statutory rules of procedure allowing service ex juris in specific cases. For instance, it would seem that a breach of contractof a tort committed in the province is such a minimal connection. Only in cases not specifically listed in the rule of court, for which leave must be obtained, could service ex juris be seriously challenged on constitutional grounds if there was no connection at all with the forum. This is unlikely to happen in such a case, since the court would not grant leave to serve the defendant ex juris.
 Castel then notes that the defendant can “invoke the discretionary power of the court to decline jurisdiction or stay the proceeding on the basis of the doctrine of forum non conveniens”. The defendant is not necessarily bound to defend the action in the province because the court has jurisdiction over the matter. On a proper motion, the court will consider whether the defendant’s jurisdiction is a more appropriate forum or other reasons for setting aside service or refusing jurisdiction under rule 17.06.
 Frymer v. Brettschneider 1994 CanLII 1685 (ON C.A.), (1994), 19 O.R. (3d) 60, 28 C.P.C. (3d) 84 (C.A.), is a decision that focuses on the issue of convenient forum. However, at p. 65 in the decision ofWeiler J.A. (dissenting in part), there is a mention of Rule 17 where it is stated that “[t]he subjects listed in rule 17.02 have a connection with Ontario, i.e., real property in Ontario, residence and personal property in Ontario, a contract made or breached in Ontario, or damage sustained in Ontario.” Arbour J.A. (McKinlay J.A. concurring) did not refer to or disagree with Weiler J.A.’s comments regarding rule 17.02.
 These sources indicate that there may be some room to interpret rule 17.02(h) as consistent with a real and substantial connection with Ontario.
hatever approach is used, the assumption of and the discretion not to exercise jurisdiction must ultimately be guided by the requirements of order and fairness, not a mechanical counting ofcontacts or connections” (p. 326 S.C.R.).
 Moran emphasized the important interest a state has in injuries suffered by persons within its territory (pp. 408-09 S.C.R.). The Supreme Court in Morguard was concerned about protecting defendants from being pursued in jurisdictions having little or no connection with the transaction or the parties’ principles of order and fairness, but damage suffered in Ontario does not necessarily have little or no connection.
What constitutes a real and substantial connection has not been fully defined. However, it has been well established by this Court inNitsuko, supra, and in Ell, supra, that there is no real and substantial connection to British Columbia based on the bare residency of the Plaintiff in the jurisdiction. There must be some other or further sufficient connecting factor or contacts to this province. Clear examplesof connecting factors include the residency of the defendant in the jurisdiction or the fact that the tortious act was committed or damages suffered here.
 There is also the decision of the Nova Scotia Court of Appeal in Oakley v. Barry 1998 CanLII 3409 (NS C.A.), (1998), 166 N.S.R. (2d) 282, 158 D.L.R (4th) 679 (C.A.). In that case, while the plaintiff lived in New Brunswick, she received treatment from the defendant physicians and hospital. They performed a liver biopsy and told her that she suffered from infectious hepatitis “B”. Then she moved to Nova Scotia where physicians told her that she did not suffer from that illness. Within six years of moving to Nova Scotia, she brought an action for damages against the defendants in that province. They brought an application to set aside the plaintiff’s originating notice on the ground that Nova Scotia lacked jurisdiction to decide the issue. The defendants had no connection with Nova Scotia, but the plaintiff did in that she received extensive medical care and social assistance in that province and her family and other support persons lived there. The judge of first instance dismissed the application. The physicians sought leave to appeal.
The jurisdictional test applied to determine whether there is a real and substantial connection between the appellant physicians and Nova Scotia should not be rigidly applied.
The concept of fairness in determining jurisdiction should be considered from the point of view ofboth the respondent [plaintiff], as well as the appellants [defendants].
Assuming that the jurisdictional issue is resolved, the question of the more convenient forum must be addressed.
 The cases hold that there will be some overlap in considerations, but that the two issues must be kept separate.
It has been held that the tests to apply in determining jurisdiction simpliciter and forum non conveniensare different (Ell v. Con-Pro Industries Ltd.,  B.C.J. No. 513 (QL) (C.A.)); though it has also been held certain factors are properly considered under both headings (Oakley v. Barry 1998 CanLII 3409 (NS C.A.), (1998), 166 N.S.R. (2d) 282, 158 D.L.R. (4th) 679,  N.S.J. No. 122 (QL) (C.A.)). Certainly the language used by La Forest J. in Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (S.C.C.),  3 S.C.R. 1077, 76 D.L.R. (4th) 256 regarding “real and substantial connection” is very similar to the language used by Arbour J.A. inFrymer v. Brettschneider 1994 CanLII 1685 (ON C.A.), (1994), 19 O.R. (3d) 60 at p. 79, 115 D.L.R. (4th) 744 (C.A.), where she states that the choice of forum is designed to ensure that the action is tried in the jurisdiction that has the closest connection with the action and the parties.
I agree with Professor Blom, in his reference to the “open-endedness of the Morguard formula” (at p. 393) and his comment that in trying to determine the meaning of order and fairness, in a jurisdiction simpliciter case, it may be necessary to take into account factors normally considered in aforum non conveniens case “in order to avoid injustice” (p. 387).
The concept of fairness in determining jurisdiction should be considered from the point of view ofboth the respondent, as well as the applicants. While this issue, as well as the issue of juridical advantage, are matters that are usually considered on a forum non conveniens issue, it is appropriate and relevant to consider them in this case involving jurisdiction simpliciter.
 On a motion to stay a proceeding on the basis of forum non conveniens, the test is whether there is clearly a more appropriate jurisdiction in which the case should be tried than the forum chosen by the plaintiff.
8. the loss of juridical advantage.
 I will discuss various factors in relation to the facts of this case but will combine some of the factors.
 Although some of the negotiations leading up to the employment contract took place in Ontario, the final negotiations took place in China, where the final contract was signed and performed. Mr. Duncan was paid in Hong Kong Dollars.
 Mr. Duncan entered into an agreement to provide services in China and to live there for over two years. It seems reasonable for the parties to expect that issues of negligence and breach of contract would be addressed pursuant to Chinese law. However, an Ontario court could apply the relevant Chinese law.
 With modern technology, this factor is not as important as in previous cases. It is no longer necessary to bring witnesses half-way around the globe to testify. Live video testimony is proving to save expense and inconvenience.
 I expect that liability will be the main issue in this litigation.
Expert evidence as to the proper installation and inspection of gas lines and gas detectors would likely come from persons familiar with the gas system in Baoding, China. The defendants have not named specific witnesses with respect to the liability issue.
 With respect to the issue of liability, the plaintiffs indicate that they would call Helen Zhongyang as a witness. She is a professional engineer, originally from Baoding, and now residing in Toronto. She was a member of Mr. Duncan’s staff in Baoding. The plaintiffs say that she can give evidence about how the local population in Baoding typically install and operate their residential gas service. She should also be able to comment on the Chinese language markings on the gas equipment in the building where Mr. Duncan resided.
 The plaintiffs propose calling witnesses who lived in the same apartment building as Mr. Duncanand who also experienced gas leaks. The O’Brians lived in the same apartment building and were exposed to a gas leak in 1997. The O’Brians live in Washington State.
 Ms. Ilian Chan lived in the same apartment building and discovered a gas leak. Ms. Chan lives in Manila, Philippines.
 Ms. Navarro and Mr. Tobias lived in the same apartment building. They have indicated that on the night that Mr. Duncan became ill, their gas detectors sounded. Both persons live in Manila.
 It appears that Mr. Duncan’s damages were caused by a gas leak. His most debilitating damages were sustained while in Ontario. The plaintiffs have indicated seven or eight persons who were involved in treating Mr. Duncan. All of the important medical witnesses reside in Ontario.
 It would appear that the bulk of the evidence would come from witnesses who reside outside ofChina.
 The factual matters arose in China. The plaintiffs reside in Ontario. The defendants’ registered offices are in different places. SMC has its registered office in the Philippines. SMBIL has its head office in the British Virgin Islands with a registered office in the Philippines. SMBBB is registered in the People’s Republic of China and is located in Baoding City. Neptunia is a Hong Kong company.
 It is not clear, if the plaintiffs’ claims were adjudicated in China, whether the case would be heard in the People’s Republic of China or in Hong Kong.
 It is also not clear whether, if in China, the case would go directly to a court or would first have to be heard by the Labour Arbitration Commission with a review by a court.
 It may be that the plaintiffs would lose a juridical advantage if their case is required to be heard in China.
 I do not consider the factors outlined in the Eastern Power case to be exhaustive. Each case must be decided on its particular circumstances.
 The court should look at the circumstances of the parties. In this case, the plaintiffs have lost the love and support of a husband and father. The plaintiffs have limited financial resources. To retain counsel in China and to pay travel expenses to China for mother and daughter and to arrange for witnesses to attend in China would be prohibitive.
 Daughter Tania is 20 years old and attends York University. Her life and schooling may be interrupted if she has to attend in China for a trial. It may not just be the trial but possible appeals which could mean several trips to China.
 In the circumstances of this case, if a proceeding must take place in China, it is likely that the plaintiffs would have to abandon their claims. That would not be the case for the defendants if they are required to present their defence in Ontario.
 The defendants are multi-national corporations. Financial resources to defend the action in Ontario would not be a problem. No individual employee of the defendants would suffer inconvenience by coming to Ontario to defend the action. The defence of the Ontario action would, for the defendants, simply be part of doing business in a global economy.
 The court should not only consider the most convenient forum for the parties to have the case heard but should also take into consideration fairness and justice to the parties and to the process.
 No real prejudice would be suffered by the defendants having to defend the action in Ontario, but the plaintiffs would suffer substantial prejudice by having to proceed with their claims in China.
 Since it is the plaintiffs who must prove their case, the court should lean toward favouring the plaintiffs’ forum. Having considered all of the factors, I find that the defendants have failed to show that China is clearly a more appropriate jurisdiction in which the case should be tried than the forum chosen by the plaintiffs.
 Rule 17.02(h) provides that where a plaintiff sustains damages in Ontario, the plaintiff may, without leave of the court, serve a claim on a foreign defendant.
 It seems odd that a plaintiff can commence an action in Ontario, go to the expense of serving the claim on the foreign defendant, and the foreign defendant go to the expense of moving for a stay in Ontario, only for the plaintiff to find that the claim should not have been commenced in Ontario because the Ontario court has no jurisdiction.
 To my knowledge no court to date has found that rule 17.02(h) is invalid. The issue of invalidity was not argued in this case.
 In my view, rule 17.02(h) confers jurisdiction on an Ontario court. The more important issue is whether Ontario is the more convenient forum.
 If the law is that damages sustained in Ontario are not sufficient to confer jurisdiction on an Ontario court and a “real and substantial connection” test is to be imported into rule 17.02(h), then the rule requires amendment.
 Any rule amendment would require some definition of the meaning of “real and substantial connection” so that a plaintiff would be able to tell where the line is crossed to give the Ontario courts jurisdiction.
 If the extent of damage sustained in Ontario is not sufficient to confer jurisdiction on Ontario courts, then a plaintiff should be required to seek leave to serve a claim on a foreign defendant. In order to lessen the cost of litigation there seems little sense in serving a claim on a foreign defendant if Ontario courts do not have jurisdiction.
We are of the opinion that it was the intention of the Legislature, when it amended Rule 25(1)(h), to enable the people of Ontario to use their own Courts more easily to sue tortfeasors for damage sustained in Ontario, as a result of torts that were committed elsewhere.
 If damage sustained in Ontario is no longer sufficient to confer jurisdiction on Ontario courts, I suggest that many individual Ontario plaintiffs will find it prohibitive to commence and continuelitigation in a foreign jurisdiction. I suggest that if that is the case justice will not be served.
 I suggest that where the minimum connection to Ontario under the rules is met, the emphasis should not be placed on whether an Ontario court or a foreign court has jurisdiction. The paramount consideration should be which court is the more convenient forum. That is the more equitable result and one in which justice will be best served.
 I find that Ontario has jurisdiction in this case and that Ontario is the more convenient forum for the case to be heard.
 Therefore, the defendants’ motion is dismissed with costs payable to the plaintiffs forthwith after assessment.
In examining the decisions in MacDonald, Leufkens, and Jean-Jacques, there is some overlap in the factors considered for jurisdiction and convenient forum. I have listed the factors considered in each decision for both the real and substantial connection test and the assessment ofconvenient forum.

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Bruce “Chip” Morris, a Director in the Houston office, is the head of the firm’s Intellectual Property Group. Whether it’s recovering lost profits for the patent holder of one of the most successful infomercial products, protecting the trade secrets of how to build the world’s fastest street car, representing a major television network against a cyber-squatter, or being on the cutting edge of covenant not to compete and trade secret law, Chip Morris has over 23 years of experience successfully representing and counseling clients on a wide range of intellectual property litigation and counseling matters.
Chip is the current Chairman of the ABA Copyright Litigation Sub-Committee on the DMCA and the former Chairman of the American Bar Association’s Sub-Committee on Trade Secrets and Tortious Interference with Contractual Relations. He has extensive experience in litigating trade secret and covenant not to compete cases, having been involved in over 50 successful trials, injunction hearings, arbitration or contempt hearings, and authored successful briefs in two of the most significant appellate decisions in the area. Chip has been quoted nationally by CNN.com and Wired Magazine as an expert on trade secret cases of national interest.
Chip also has extensive patent, copyright, trademark and unfair competition litigation experience, including trying three patent cases to successful verdict. His recent work involves authoring two chapters of the ABA Copyright Litigation Strategies book and co-authoring a successful brief to the U.S. Supreme Court on a patent jurisdiction issue. He has also obtained injunctive relief against future trademark infringement in favor of a high-profile political advocacy group, injunctive relief against future unfair competition in favor of a successful real estate company and obtaining a Final Arbitration Award enforcing a non-compete/non-disclosure agreement obtaining injunction, damages and attorney fees for the client.
In addition to his wide-ranging litigation experience, Mr. Morris has prepared numerous licensing agreements and is often requested by clients to provide advice on licensing issues, intellectual property protection policies, employment policies, employment agreements and other business-related issues.
Successfully represented clients in over 50 trade secret and covenant not to compete cases and obtained favorable appellate decisions in two of the leading cases in the area.
Obtained for clients over 70 favorable temporary restraining orders and/or temporary injunction orders protecting their respective intellectual property.
Co-authored a successful brief to the U.S. Supreme Court on patent issues.
Obtained favorable jury verdict awarding over $19 million in consumer product trademark, copyright, and patent infringement action against a major infomercial company.
Obtained bench verdict in consumer product trademark and copyright infringement case against five national retailers that resulted in a multi-million dollar settlement for the client.
Obtained favorable jury verdict of non-infringement in patent infringement case against manufacturer of walkway molds. The jury verdict dissolved the injunction that had been entered against the client prior to our entering the case.
Obtained favorable bench verdict in patent infringement action against manufacturer of oil field measuring devices.
Obtained favorable liability finding in contempt action against patent infringers in the oil field industry.
Obtained favorable contempt finding in oil field industry trade secret case.
Successfully prosecuted trademark infringement action against valve manufacturer.
Successfully defended large garbage truck manufacturer against patent infringement allegations.
Successfully settled patent infringement case for an online retailer.
Successfully represented large television network against cyber-squatter.
Successfully obtained injunctive relief against a future trademark infringement in favor of a high-profile political advocacy group.
Counseled multiple clients on IP licensing and other IP transactional matters.
Counseled multiple clients on employment law matters.
Successfully obtain injunctive relief, damages and attorneys’ fees for client in arbitration involving non-compete/non-disclosure agreement.
Successfully represented oil company in international lease dispute.
Successfully represented oil company in international offshore platform contract dispute.
Obtained favorable jury verdict awarding over $1.8 million in real estate easement case.
Successfully defended large oil company in contract dispute arbitration.
Gunn v. Minton, 133 S.Ct. 1059 (U.S. 2013) (reversing Texas Supreme Court’s ruling that the Federal Circuit had exclusive jurisdiction to hear attorney malpractice claims involving patents).
Alex Sheshunoff Management Services, L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006) (relaxing requirements for enforceable non-compete agreements in Texas).
Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex. 2002) (setting forth requirements for when cases must go to an administrative body prior to filing suit).
T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d) (upholding finding of trade secret misappropriation despite there not being either a non-disclosure agreement or non-compete agreement).
Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 154 F.3d 1345 (Fed. Cir. 1998) (upholding trial court’s finding of contempt for patent infringement against a non-party).
Hupp v. Siroflex of America, Inc., 122 F.3d 1456 (Fed. Cir. 1997) (upholding jury finding of non-infringement of design patent).
Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 96 F.3d 1390 (Fed. Cir. 1996) (substantially upholding trial court’s denial of Rule 60(b) motions regarding injunction entered as a result of patent infringement finding).

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Update (9/8/2015): I have since learned that the grant in Davis v. Stapf was not an “own motion” grant. Rather, before the Court of Special Appeals filed its opinion, the plaintiff filed a petition asking the Court of Appeals to consider Davis v. Stapf along with a similar case (Manal Kiriakos v. Brandon Phillips, Case No. 20, September Term, 2015) where certiorari was granted in March. Still, it remains interesting that the Davis v. Stapf opinion prompted the Court of Appeals to grant certiorari outside of its normal conference schedule.
Yesterday saw unusual and fast action by the Court of Appeals of Maryland in a major case on liability for serving alcohol to minors. In an August 26 opinion in Davis v. Stapf, the Court of Special Appeals ruled against the estate of a 17-year-old passenger killed in an auto accident following a party. The decedent, who riding in the bed of a pickup truck, and the 22-year-old driver were both intoxicated. The panel majority (in an opinion by Judge Graeff and joined by Chief Judge Krauser) found that the party’s host, who served the minor alcohol in violation of Criminal Law § 10-117(b), owed no statutory duty of care to the minor that could result in tort liability. Judge Nazarian concurred, believing that the fact the minor was not the driver cut the chain of causation.
Issues – Torts – 1) Are minors intended protectees of CL § 10-117(b), which prohibits adult property owners from allowing minors to consume alcoholic beverages on their premises? 2) Does MD recognize a duty of care arising from the special relationship between a parent hosting an underage drinking party on her property and a minor attendee who the parent permitted to attend and consume excessive amounts of alcohol?
I’ll make two quick observations. First, this grant is somewhat surprising, given that just two years ago the Court of Appeals declined to adopt dram shop liability. Second, Chief Judge Barbera, who joined the majority opinion in the dram shop case, last year ended the practice of routinely granting certiorari on the Court’s own motion. But, as I noted when Chief Judge Barbera disbanded the Bypass Committee, “the Court of course still retains statutory authority for own-motion grants in unusual cases.” This case was not a true bypass, in that the Court of Special Appeals did issue an opinion. But it does highlight that the Court of Appeals carefully reviews the published opinions of the Court of Special Appeals and will not hesitate to take an important case on its own motion.
It would seem reasonable for the court to at least carve out an exception for serving minors alcohol. Should the court go further than that? Absolutely. But carving out an exception for minors would be a step towards justice in these cases.
By the way, it is worth reading Judge Adkins dissent in Warr. v. JMGM which does an amazing job of explaining why those who serve alcohol to people that know or have reason to know are going to kill themselves or someone else should be subject to civil liability.


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[265 U.S. 70, 71] Messrs. John H. Holt, of Huntington, W. Va., Theodore W. Reath, of Philadelphia, Pa., and Lucian H. Cocke, of Roanoke, Va., for plaintiff in error.
Messrs. Randolph Bias, of Williamson, W. Va., and F. M. Livezey, of Huntington, W. Va., for defendants in error.
John Followay, one of the defendants in error, a merchant at a village called Blackberry City, in Mingo county, W. Va., filed complaint with the Public Service Commission of that state, praying that the Norfolk & Western Railway Company, plaintiff in error, be required to furnish a suitable crossing and to provide reasonable facilities for the use of shippers at that place. After a hearing, at which much evidence was introduced, the commission made an order which directed the railway company to construct and maintain a roadway for vehicles across its tracks at McCarr Siding. It limited the use of the crossing to the transportation of freight consigned to the complainant and other shippers, and required that the entrance to the crossing at the north side of the track be closed by a gate to be furnished by complainant and to be by him kept locked, except when the crossing was being so used, and directed that, while the crossing was being used by complainant for the transportation of goods across the tracks in vehicles, he should provide a watchman to give notice of approaching trains.
The company instituted proceedings in the Supreme Court of Appeals to suspend and set aside the order, and [265 U.S. 70, 72] there contended that it was repugnant to the due process and equal protection clauses of the Fourteenth Amendment. The contention was overruled, and the order was affirmed. Railway Co. v. Public Service Commission, 91 W. Va. 414, 113 S. E. 247. Plaintiff in error seeks to have the judgment reversed on the ground of such repugnancy.
It is provided by statute that every railroad company may be required by the commission to establish and maintain such suitable public facilities and conveniences as may be reasonable and just. Section 4, c. 15O, Barnes' Code 1918; Railway Co. v. Public Service Commission, supra, 419, 113 S. E. 247.
The facts may be briefly stated. At McCarr Siding there are four parallel tracks-an eastbound main line, a westbound main line, a track between these, and a branch line extending across the Tug river. There is also a spur track extending southeasterly from the main line tracks to the tipple of the Allburn Coal Corporation and intersecting the approach to the proposed crossing about 200 feet therefrom.
The railroad tracks are on the north bank of the Tug river which at this place is the boundary between West Virginia and Kentucky. The village adjoins the company's right of way on the north and is located on a bluff considerably higher than the railroad tracks. Its population is about 100. Complainant's store is on a hillside a short distance north of the tracks. The Allburn Coal Corporation owns a double-decked bridge across the river almost directly opposite the store. The upper level of the bridge is used for transportation of coal, and the lower level is used for pedestrian and vehicular travel. Though privately owned, it has been used by the public for a number of years as a part of the traveled way between the village and the territory south of the river. By reason of a sharp curve in the tracks and a deep cut, the [265 U.S. 70, 73] view of the crossing is obstructed, so that enginemen on approaching trains can see it for only a short distance.
McCarr Siding was established for the accommodation of the Allburn Coal Company about 10 or 12 years prior to the filing of the complaint. The tariffs of the railway company and its shipping instructions state that the siding is a carload billing point. It is also a prepay station, to which freight in carload and less than carload lots may be shipped, to be delivered at the risk of consignees. The coal company and complainant receive by far the larger part of the freight. The amount received by others is small. When the mines of the Allburn Coal Corporation are fully operated, 8 or 10 carloads of coal are loaded daily. Other outgoing shipments, consisting principally of boxes, containers, and household goods, are also made. The siding is a flag station for three passenger trains, two eastbound and one westbound daily. For that purpose it serves about 1,000 people living in the vicinity, including many on the Kentucky side of the river. From 10 to 30 people get on and off trains at McCarr daily. Mail for the village is carried by railroad and delivered at the siding.
Complainant has been engaged in business in the village for many years. He handles merchandise in substantial volume. His freight bill amounts to about $300 a month. The goods come in less than carload and in carload lots, and are delivered by the company at the siding. Most of them are brought from the west. Less than carload lots are deposited by the company on the ground on the south side of the tracks opposite his place of business, and carloads are delivered at approximately the same place. It is necessary for him to move his freight across the four intervening tracks. No station facilities have ever been furnished at the siding, and the commission found that the company's failure to afford reasonable facilities for the removal of complainant's freight [265 U.S. 70, 74] from its premises causes him damage, delay, and inconvenience.
Because of the danger attending the use of the crossing, the railway company, shortly before the commencement of these proceedings, planted posts about 5 feet apart for a distance of about 50 feet along the right of way on the north side of its tracks to obstruct the crossing and prevent its use for vehicular traffic. This compelled complainant to carry the freight consigned to him by hand across the tracks at a cost greatly in excess of the expense of hauling it in vehicles.
The state, in the exercise of its police power, directly or through an authorized commission, may require railroad carriers to provide reasonably adequate and suitable facilities for the convenience of the communities served by them. But its power to regulate is not unlimited. It may not unnecessarily or arbitrarily trammel or interfere with the operation and conduct of railroad properties and business. Mississippi Railroad Commission v. Mobile & Ohio R. R. Co., 244 U.S. 388, 390 , 391 S., 37 Sup. Ct. 602. The validity of regulatory measures may be challenged on the ground that they transgress the Constitution, and thereupon it becomes the duty of the court, in the light of the facts in the case, to determine whether the regulation is reasonable and valid or essentially unreasonable, arbitrary and void. Wisconsin, Minnesota & Pacific Railroad v. Jacobson, 179 U.S. 287, 297 , 301 S., 21 Sup. Ct. 115; Burns Baking Co. v. Bryan, 264 U.S. 504 , 44 Sup. Ct. 412, 68 L. Ed. --. Railroad carriers may be compelled by state legislation to establish stations at proper places for the convenience of their patrons. Minneapolis & St. Louis R. R. Co. v. Minnesota, 193 U.S. 53, 63 , 24 S. Sup. Ct. 396. Any measure promulgated by the state to require a railroad company to provide suitable facilities reasonably necessary for the removal from its premises of freight carried by it for its customers does not create a new duty or impose any unnecessary burden. [265 U.S. 70, 75] The facts in this case clearly show the need of some facilities at McCarr Siding for the use of the patrons of the railroad. The order directing the company to construct and maintain a crossing for the use of vehicles to haul the freight across the tracks is a light burden upon the carrier and cannot be said to be unreasonable and arbitrary. It need not be considered whether the company, in the interest of the safety of those using the crossing, lawfully might have been required to furnish the gate and provide the watchman.
To support its contention that the order is unconstitutional, the company asserts that the order takes from it and gives to complainant the control of the crossing; that it prevents the use of the crossing without the consent and participation of complainant, and compels the company to enter into an arrangement or agreement with complainant making him its agent to control the use of the crossing and to guard it while being used. These contentions are without merit. The order does not impair or interfere with the company's right to permit the crossing to be used for purposes other than those specified in the order or prevent the company from guarding the crossing by watchmen or otherwise as it sees fit. Manifestly the limitation upon the use of the crossing and the imposition of duties on the complainant in respect of the gate and the guarding of the crossing were for the benefit of the company. The effect of these provisions was to relieve the carrier of a part of the burden and expense of providing facilities deemed reasonable and necessary for the removal of freight consigned to complainant and others at the siding. We find nothing in the order that deprives the company of its property without due process of law or denies to it the equal protection of the laws.

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Over the years 2005–2012 avifauna was studied of 17 waste water treatment plants, located in the Chernihiv and Sumy Regions (northern left-bank) of Ukraine. 81 species of 30 families and 14 orders were registered. Taking into account landscape and technological peculiarities of the waste water treatment plants the follows zones of the birds’ distribution were distinguished: zone of water areas, agro-meadows zone, zone of dams, technological zone. It was noted that birds occurred in different zones unevenly. Maximal species number and diversity of ecological structure of the breeding avifauna was noted within the water bodies and dams. In terms of landscape-biotopic characteristic in waste water treatment plants dominated dendrophilous and wetland birds.
Avilova, K. V., Eremkin, G. S. Natural-technogeneous landscape as accumulator of rare bird species (by example of waste water treatment plant of Moscow) // Rare bird species of the Non-Chernozem Center of Russia : Proceedings of workshop “Rare bird species of European part of Russia.” (Moscow, January 25–26, 1995). — Moscow : MGPU, 2000. — P. 268–270. — Russian : Авилова К. В., Еремкин Г. С. Природно-техногенный ландшафт как аккумулятор редких видов птиц (на примере очистных сооружений Москвы).
Davidenko, I. V. Monitoring of artificial water bodies as basis for conservation and rational management of birds of the wetland complex // Biomonitoring of natural and transformed ecosystems: Proceedings of International scientific and practical conference (Brest, October 15–16, 2008.) — Brest : Publishing house of Brest University, 2008. — P. 43–46. — Russian : Давиденко И. В. Мониторинг искусственных во-доемов как основа сохранения и рационального использования птиц водно-болотного комплекса.
Emelyanov, I. G., Zagorodniuk, I. V. Khomenko, V. N. Taxonomic structure and complexity of biotic communities // Ekologiya i noosferologiya. — 1999. — 8, N 4. — P. 6–18. — Russian : Емельянов И. Г., Загороднюк И. В., Хоменко В. Н. Таксономическая структура и сложность биотических сообществ.
Gavris, G. G., Oystercatcher Haematopus ostralegus (Linnaeus, 1758) // Red Data Book of Ukraine. Animals / Ed. I. A. Akimov. — Kyiv : Globalcolsanting, 2009. — P. 451 — Ukrainian : Гаврись Г. Г. Кулик-сорока Haematopus ostralegus (Linnaeus, 1758).
Glue, D., Bodenham, D. Bird-life at a Modern Sewage Farm // Bird Study. — 1974. — 21, N 4. — Р. 229–237.
Gordienko, N. S. Numbers and localization of sheldrakes in lakes of the steppe zone of Northern Kazakhstan // Biologiya ptits Naurzumskogo zapovednika. — Alma-Ata, 1980. — P. 167–198. — Russian : Гордиенко Н. С. Численность и размещение поганок на озерах степной зоны Северного Казахстана.
Gudina, A.N. Methods of account of nesting birds: mapping of territories. — Zaporozhzhye : Dikoye Pole, 1999. — 241 p. — Russian : Гудина А.Н. Методы учета гнездящихся птиц: картирование территорий.
Hagemeijer, E. J., Blair, M. J. The EBCC Atlas of European Breeding Birds: Their Distribution and Abundance. — London : T & AD Poyser, 1997. — 903 р.
Hammer, О., Harper, D. A. T., Ryan, P. D. PAST: Paleontological Statistics Software Package for Education and Data Analysis // Palaeontologia electronica. — 2001. — 4, is. 1. — 9 p. — http://palaeo-electronica.org/2001_1/past/issue1_1.htm.
Kuzmenko, L. P. Bird communites of the Made-man landscapes in the North-lasten part of Ukraine // Vestnik zoologii. — 2000. — 34, N1–2. — P. 119–121. — Ukrainian : Кузьменко Л. П., Орнітокомплекси антро-погенних ландшафтів північно-східної частини Українського Полісся.
Pesenko, Yu. A. Princuples and methods of quantitative analysis in faunistic studies. — Moscow : Nauka, 1982. — P. 130–164. — Russian : Песенко Ю. А. Принципы и методы количественного анализа в фаунисти-ческих исследованиях.
Soloviova, V. V., Yasiuk, V. P., Pures’kin, M. A. Hydrobotanical and ornithological peculiarities of technogeneous water bodies of the Samara Region // Samarskaya Luka. Bulletin. — 2006. — N 19. — P. 139– 150. — Russian : Соловьева В. В., Ясюк В. П., Пуреськин М. А. Гидроботанические и орнитологиче-ские особенности техногенных водоемов Самарской области.
Spiridonov, S. N., Sarychev, V. S., Okolelov, A. Yu. et al. Technogeneous water bodies as refuges for conservation of biological diversity of birds in the Forest-Steppe zone // Povolzhskiy ekologicheskiy zhurnal. — 2009. — N 4. — P. 319–326. — Russian: Спиридонов С. Н., Сарычев В. С., Околелов А. Ю. и др. Техногенные водоемы как резерваты по сохранению биологического разнообразия птиц в Лесостепной зоне.
Stepanian, L. S. Conspectus of the ornithological fauna of Russia and adjacent territories. — Moscow : Akademkniga, 2003. — 808 p. — Russian : Степанян Л.С. Конспект орнитологической фауны России и со-предельных территорий.

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131 Wn. App. 97, Satterlee v. Dep't of Soc. & Health Servs.
DENNIS SATTERLEE ET AL ., Appellants , v. THE DEPARTMENT OF SOCIAL AND HEALTH SERVICES , Respondent .
 Administrative Law - Judicial Review - Appellate Review - Record - Agency Record. An appellate court reviews an administrative adjudication by sitting in the same position as the trial court and applying the review standards of RCW 34.05.570 (3) directly to the record that was before the administrative adjudicator.
 Administrative Law - Judicial Review - Question of Law - Standard of Review. Questions of law in an administrative adjudication are reviewed de novo.
 Statutes - Construction - Review - Standard of Review. The meaning of a statute is reviewed de novo.
 Statutes - Construction - Legislative Intent - Unambiguous Language. A court's primary objective in interpreting a statute is to ascertain and carry out the legislature's intent and purpose. To determine legislative intent, the court first looks to the language of the statute. If the statute is unambiguous, its meaning is derived from the plain language of the statute alone. A statute is not ambiguous simply because different interpretations are conceivable. A statute is ambiguous only if it can reasonably be interpreted in two or more ways.
 Assault, Criminal - Simple Assault - Renamed Fourth Degree Assault. The crime of "simple assault" under former RCW 9A.36.040(1) (1986) has been renamed "fourth degree assault" under RCW 9A.36.041 (1). Both statutes describe the same crime.
 Statutes - Construction - Legislative Intent - Superfluous Language. A statute is construed so that no portion of it is rendered superfluous.
 Statutes - Construction - Legislative Intent - Prior Acts and Constructions. There is a presumption that new legislation is consistent with prior judicial decisions.
 Licenses - Adult Family Home - Denial, Suspension, Revocation, or Nonrenewal of License - Conviction of Crime Against Person - Simple Assault - What Constitutes - Fourth Degree Assault. A conviction of fourth degree assault under RCW 9A.36.041 (1) constitutes a conviction of "simple assault" within the meaning of RCW 43.43.830 (5), which, under RCW 70.128.120(8), disqualifies a person from holding an adult family home license under chapter 70.128 RCW.
 Licenses - Adult Family Home - Employees - Hiring - Conviction of Simple Assault or Fourth Degree Assault - Same or Different Crimes. RCW 43.43.842 (2)(a) allows an adult family home to hire an individual convicted of "simple assault, assault in the fourth degree, or the same offense as it may be renamed," provided that such conviction occurred more than three years earlier. The use of the different terms does not indicate a difference in meaning; rather it indicates that "simple assault" and "assault in the fourth degree" refer to the same crime.
Nature of Action: The operator of an adult family home sought judicial review of the administrative revocation of his adult family home license. The license was revoked because the operator was convicted of the crime of fourth degree assault.
Superior Court: The Superior Court for Thurston County, No. 04-2-00781-7, Richard D. Hicks, J., on March 4, 2005, entered a judgment upholding the administrative decision.
Court of Appeals: Holding that the operator's fourth degree assault conviction rendered him ineligible to hold an adult family home license under a statute that disqualifies individuals from holding an adult family home license if convicted of "simple assault," the court affirms the judgment.
Clifford G. Morey (of Davies Pearson, P.C. ), for appellants .
Robert M. McKenna , Attorney General, and Lucretia F. Greer , Assistant, for respondent .
¶1 HUNT, J. - Dennis Satterlee appeals revocation of his license to operate an adult family home. He argues that fourth degree assault is not a crime for which the Department of Social and Health Services (DSHS) could revoke his license upon conviction. Holding that Satterlee's fourth degree assault conviction is the same as a simple assault conviction for purposes of RCW 43.43.830 (5), we affirm his license revocation.
adult family home. On July 1, 2003, DSHS revoked his adult family home license for failure to ensure that a resident was free from sexual abuse.
¶3 Satterlee filed an administrative appeal. The administrative law judge (ALJ) held hearings on September 9, September 10, and November 14, 2003. In superior court on October 27, between the second and third administrative hearings, Satterlee entered a Newton/Alford «1»plea of guilty to a single criminal charge of fourth degree assault. At the November 14 administrative hearing, the ALJ reversed DSHS's revocation of Satterlee's license.
¶4 DSHS appealed to the DSHS Board of Appeals (Board), which reversed the ALJ's decision. The Board ruled that DSHS was required to revoke Satterlee's license based on his conviction of fourth degree assault, which it considered a crime against persons under RCW 43.43.830(5). The Board then reinstated DSHS's revocation of Satterlee's license.
¶5 Satterlee appealed to the Thurston County Superior Court, which upheld the Board's decision revoking Satterlee's license. The court ruled that (1) fourth degree assault is the same as simple assault under RCW 43.43.830; and (2) Satterlee's conviction made him ineligible to hold an adult family home license.
¶7 Satterlee contends that the trial court erred when it affirmed DSHS's decision to revoke his adult family home license. He argues that RCW 43.43.830 (5) does not list fourth degree assault as a ground for revocation upon conviction; rather, he asserts, the statute includes only simple assault, together with first, second, and third degree assaults, in its list of forbidden crimes. His argument fails.
«1» North Carolina v. Alford , 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Newton , 87 Wn.2d 363 , 552 P.2d 682 (1976).
[1-3]¶8 In reviewing an administrative action, we sit in the same position as the trial court and apply the Administrative Procedure Act (APA) (chapter 34.05 RCW) standards directly to the agency's administrative record.«2»We review findings of fact for substantial evidence in light of the whole record. RCW 34.05.570 (3)(e). We review questions of law de novo.«3»Because this appeal involves the meaning of "simple assault" in the context of RCW 43.43.830(5), we review this issue of law de novo.
¶9 Adult family homes are long-term residences for people who need care, room, and board. See RCW 70.128.005 and . 010(1). Washington requires a person who operates or maintains an adult family home to be licensed. RCW 70.128.050 . RCW 70.128.120 requires licensed adult family home providers and resident managers to meet certain minimum qualifications, including having no convictions for "any crime listed in RCW 43.43.830 and 43.43.842."
«2» Superior Asphalt & Concrete Co. v. Dep't of Labor & Indus ., 112 Wn. App. 291 , 296, 49 P.3d 135 (2002) (citing Tapper v. Employment Sec. Dep't , 122 Wn.2d 397 , 402, 858 P.2d 494 (1993)), review denied , 149 Wn.2d 1003 (2003).
«3» Franklin County Sheriff's Office v. Sellers , 97 Wn.2d 317 , 325, 646 P.2d 113 (1982), cert. denied , 459 U.S. 1106 (1983).
¶11 RCW 43.43.830 (5) provides, " 'Crime against children or other persons' means a conviction of any of the following offenses," and then lists numerous offenses, including first degree assault, second degree assault, third degree assault, custodial assault, simple assault, and " any of these crimes as they may be renamed in the future ." RCW 43.43.830 (5) (emphasis added).
¶12 When our Legislature enacted RCW 43.43.830 in 1987, Washington's criminal code included the crime of simple assault under former RCW 9A.36.040 (1), not fourth degree assault. Effective July 1, 1988, our Legislature repealed RCW 9A.36.040 (1) (simple assault) and replaced it with fourth degree assault. Former RCW 9A.36.041 (1) (1988); see also LAWS OF 1986, ch. 257 § 7. The issue here is whether, in adopting these statutory changes, the Legislature "renamed" simple assault (former RCW 9A.36.040 (1) (1986)) as fourth degree assault ( RCW 9A.36.041 (1)), such that both statutes describe the same crime for purposes of disqualifying a person under RCW 43.43.830 (5) and 43.43.842(1)(a) from holding a family home license.
(a) Convicted of a crime against a persons as defined under RCW 43.43.830 or 43.43.842.
¶13 When a court interprets a statute, the primary objective is to ascertain and to carry out the Legislature's intent and purpose. Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles , 148 Wn.2d 224 , 242-43, 59 P.3d 655 (2002) ( Tenino Aerie ). To determine legislative intent, we look first to the language of the statute. If the statute is unambiguous, its meaning derives from its plain language alone. " 'A statute . . . is not ambiguous simply because different interpretations are conceivable.' " Tenino Aerie , 148 Wn.2d at 239 -40 (quoting State v. Keller , 143 Wn.2d 267 , 276, 19 P.3d 1030 (2001)). Rather, a statute is ambiguous only if it can reasonably be interpreted in two or more ways. Tenino Aerie , 148 Wn.2d at 242 -43.
Every person who shall commit an assault . . . not amounting to assault in either the first, second, or third degree shall be guilty of simple assault.
A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another.
also specifically excludes custodial assault,«5»this exclusion was a minor change in language, unrelated to the renaming of simple assault. More importantly, this change did not criminalize any new conduct that was not already criminalized under the previous version of the statute, under which a fourth degree assault conviction would have necessarily been a simple assault conviction.
«5»The Legislature enacted the crime of "custodial assault" in 1987. LAWS OF 1987, ch. 188, § 1. Before this time, our state did not define "custodial assault" separately from other assaults. Unless it was first, second, or third degree assault, an assault on a volunteer or correctional facility civilian employee amounted to only simple assault, a gross misdemeanor. See State v. Ashcraft , 71 Wn. App. 444 , 454 n.2, 859 P.2d 60 (1993). By specifically naming "custodial assault" in the 1987-88 version of the statute, the Legislature segregated this crime from "simple assault" and made "custodial assault" a class C felony, which is equivalent to third degree assault. RCW 9A.36.041 , .100; Ashcraft , 71 Wn. App. at 454 n.2.
The classification of custodial assault as a class C felony did not change the meaning or degree of simple assault (now renamed "fourth degree assault"), a misdemeanor. Nor did it create a new offense. Rather, by removing custodial assault from the former simple assault category and elevating the degree, the Legislature both increased the seriousness of custodial assault and shortened the list of "default" crimes that were previously considered fourth degree/simple assault. See also explanation in n.6.
«6»We note that, even if we were to look beyond the plain language of the statute, legislative history also reveals that simple assault was renamed "fourth degree assault." In 1986, when the Legislature first promulgated fourth degree assault, the definition was essentially identical to that for simple assault; neither definition contained a "custodial assault" provision, and both covered exactly the same acts. Compare LAWS OF 1986, ch. 257, § 7, with former RCW 9A.36.040 (1987). The Legislature subsequently amended fourth degree assault to exclude custodial assault only after it created the separate crime of "custodial assault" in 1987. LAWS OF 1987, ch. 188, § 2; see LAWS OF 1987 ch. 188 § 1.
¶16 This conclusion is further supported by well-settled Washington case law, which historically has considered fourth degree assault to be the same crime as simple assault. We have previously so held in State v. Hummell , 68 Wn. App. 538 , 541, 843 P.2d 1125 (1993) (fourth degree assault is the equivalent of simple assault), and State v. Sample , 52 Wn. App. 52 , 56 n.2, 757 P.2d 539 (1988) (effective July 1, 1988, RCW 9A.36.040 defining simple assault was superseded by RCW 9A.36.041 ). See also Division One's holdings in State v. Ashcraft , 71 Wn. App. 444 , 454 n.2, 859 P.2d 60 (1993) (simple assault is essentially identical to assault in the fourth degree), and State v. Davis , 60 Wn. App. 813 , 820, 808 P.2d 167 (1991) (assault in fourth degree is simple assault at common law), aff'd , 119 Wn.2d 657 , 835 P.2d 1039 (1992).
¶17 We further note that in listing crimes, conviction of which could disqualify an adult home licensee under RCW 43.43.842 (1)(a), the Legislature clearly contemplated the possibility of name changes for some of the listed crimes: The Legislature expressly listed as a license disqualifier "any of these crimes as they may be renamed in the future." RCW 43.43.830 (5) (emphasis added). As we explain above, the former crime of simple assault, listed in RCW 43.43.830 (5) as a disqualifier, is the same crime as the newly named "fourth degree assault" defined in RCW 9A.36.041(1). Moreover, the enactment and effective dates of these statutes fell within roughly a one-year time frame, indicating that the Legislature was working on them contemporaneously. That RCW 9A.36.041 (1) "renamed" simple assault as "fourth degree assault," as contemplated by the last phrase of RCW 43.43.830 (5), further supports the conclusion that they are the same crime.
simple assault, or as it might be "renamed," as a ground for license disqualification under RCW 43.43.842 and RCW 70.128.120(8) would be meaningless. In other words, because there was no crime called "simple assault" after its repeal in 1988, there would be no point to continue including this former crime as a "crime against others" under RCW 43.43.830(5) after 1988. Such is not the case here, however, since in repealing the crime of simple assault, the Legislature retained the essence of this crime and renamed it "fourth degree assault."«7» See Ashcraft , 71 Wn. App. at 454 ; Sample , 52 Wn. App. at 56 .
¶19 The second rule is that we presume new legislation is consistent with prior judicial decisions. State v. McCullum , 98 Wn.2d 484 , 493, 656 P.2d 1064 (1983). Following Hummell , Sample , Ashcraft , and Davis , supra , the Legislature amended RCW 43.43.830 (5) several times, adding new crimes in 1989, 1990, 1995, 1999, and 2002. Had the Legislature disagreed with the courts' interpretations, it could have clarified in any one of the amendments that fourth degree assault was not in fact simple assault renamed.
¶20 Satterlee next argues that the Legislature's distinction between simple assault and fourth degree assault in RCW 43.43.842 (2)(a) implies that simple assault is not the same crime as fourth degree assault under RCW 43.43.830 . This argument also fails.
«7»Satterlee argues that, despite these published appellate court holdings, (1) the Legislature did not omit simple assault from RCW 43.43.830 , even though it amended RCW 43.43.830 several times between 1989 and 2003; and (2) the Legislature intentionally left simple assault in the statute because it wanted to prevent licensing a person convicted of simple assault in another state. His argument fails. RCW 43.43.830 does not refer to simple assaults committed in other states, and Satterlee fails cite to any statute, case law, or literature to support his argument. Therefore, we do not further consider his argument. See RAP 10.3; Cowiche Canyon Conservancy v. Bosley , 118 Wn.2d 801 , 809, 828 P.2d 549 (1992).
fourth degree, or the same offense as it may be renamed," provided that these convictions occurred more than three years earlier. RCW 43.43.842 took effect in 1989, shortly after the Legislature repealed simple assault and codified fourth degree assault, effective in 1988. Therefore, an applicant for employment in a licensed family home could potentially have a criminal history that includes both simple and fourth degree assault, depending on when the applicant was charged and convicted.
¶22 Rather than suggesting that simple and fourth degree assault are two different crimes, RCW 43.43.842(2)(a)'s inclusion of both names in the same subsection shows the Legislature's treatment of them as the same crime. First, no other RCW 43.43.842 (2) subsection references more than one offense or more than one degree of an offense; simple and fourth degree assault would be the sole exception.«8»Rather, this statute assigns different subsections to various other separate, distinct, and individually listed offenses, for example: prostitution, subsection (b); third degree theft, subsection (c); second degree theft, subsection (d); and forgery, subsection (e).
¶23 Second, in subsection (a), the Legislature linked "simple assault" and "assault in the fourth degree" with the clause "or the same offense as it may be renamed." RCW 43.43.842(2)(a). Use of the singular "the same offense " and " it " show that the Legislature referenced a singular antecedent, namely one lowest degree of assault, regardless of whether it is called "simple assault" or "assault in the fourth degree."
«8» See , e.g ., RCW 43.43.842 (2), (separately lists prostitution, third degree theft, second degree theft, and forgery under subsections (b) through (e)).
further supports our conclusion that subsection (a) of RCW 43.43.842 (2) refers to a single crime, albeit with at least two, and potentially additional, different names.
¶25 As we have previously held in criminal cases, we again hold that fourth degree assault is the same crime as simple assault, this time, however, for purposes of RCW 43.43.830 (5). See Hummell, supra ; Sample, supra. We further hold that (1) DSHS properly revoked Satterlee's adult family home license under RCW 43.43.830 based on his fourth degree assault conviction; and (2) the trial court properly affirmed DSHS's revocation of his license.
HOUGHTON and ARMSTRONG , JJ., concur.

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Justia › US Law › US Case Law › US Supreme Court › Volume 224 › Beutler v. Grand Trunk Junction Ry. Co.
Courts may not abolish an established rule of law upon personal notions of what is expedient, and so as to the fellow servant doctrine, even if it be, as it has been called, a bad exception to a bad rule.
In cases tried in the United States courts, the court must follow its understanding of the common law when no settled rule of property intervenes.
The fellow servant rule applies where the character of their respective occupation brings the people engaged in them into necessary and frequent contact even if they have no personal relation.
An employee of a railroad company engaged in work in the repair yard is a fellow servant of the crew of a switching engine of the same company engaged in running cars needing repairs into the yard.
Although the question of fellow servant may be left to the jury in the state court, the question whether the facts do or do not constitute a ground of liability is one of law; this Court accordingly answers a question certified by the circuit court of appeals as to whether employee in this case were fellow servants.
If a law is bad, the legislature, and not juries, must change it.
The facts, which involve the determination of whether certain classes of employees of railroad companies are fellow servants, are stated in the opinion.
The deceased, Fetta, was at work in the repair yard of a railroad; other servants of the road, an engine and switching crew, ran a car needing repair from the general tracks into the special yard, and, by their negligence, killed him. There was no further relation between the parties than these facts disclose, and the question is certified whether they were fellow servants within the rule that would exempt the railroad from liability in that case.
The doctrine as to fellow servants may be, as it has been called, a bad exception to a bad rule, but it is established, and it is not open to courts to do away with it upon their personal notions of what is expedient. So it has been decided that, in cases tried in the United States courts, we must follow our own understanding of the common law when no settled rule of property intervenes. Kuhn v. Fairmont Coal Co., 215 U. S. 349; Northern Pacific R. Co. v. Hambly, 154 U. S. 349, 154 U. S. 360.
clearly fellow servants as the section hand and engineer in Texas & Pacific Railway Co. v. Bourman, 212 U. S. 536; Northern Pacific R. Co. v. Hambly, 154 U. S. 349. It may be that, in the state court, the question would be left to the jury, Gathman v. Chicago, 236 Ill. 9; Indiana & Iowa. R. Co. v. Otstot, 212 Ill. 429, but whether certain facts do or do not constitute a ground of liability is in its nature a question of law. To leave it uncertain is to leave the law uncertain. If the law is bad, the legislature, not juries, must make a change. We answer the certificate, Yes.


109 NORTH, LLC v. NEW MILFORD PLANNING COMMISSIONER.
The plaintiff has filed a complaint seeking a writ of mandamus against the defendant alleging that it failed to take action on plaintiff’s cluster conservation subdivision application within 65 days of the close of the public hearing as mandated by General Statutes § 8-26.
Specifically, the plaintiff claims that on July 6, 2006 and July 20, 2006 the defendant’s tie votes of 2-2, with one abstention, on a motion relative to the application failed to constitute action to approve, modify and approve or deny the application as required by that statute. The parties agree that there are no facts in dispute in this matter, and each has filed a motion for summary judgment relative to their respective positions and have submitted supporting affidavits and documents in accordance with Practice Book § 17-44 et seq.
Both parties have briefed the issue, and the court commends the parties for their thoroughness in doing so. The factual and procedural background is set out in the plaintiff’s complaint and the subsequent pleadings of the parties, and it is not necessary to recount them here for purposes of ruling on the motions. The matter was heard by the court at short calendar on March 12, 2007.
A thorough review of all of the materials submitted by the parties leads the court to the conclusion that the substance and nature of the defendant’s vote of July 6, 2006 relative to the plaintiff’s application constitutes action by the defendant as a matter of law under General Statutes § 8-26 and was within the time period mandated by the statutory framework for such decisions. Accordingly, the plaintiff’s proper avenue of redress would be an appeal from the decision of the defendant. As noted by both parties in their pleadings, the plaintiff has in fact filed such an appeal. Because the court has found as a matter of law that the defendant’s vote of July 6, 2006 constituted action on the defendant’s part, it need not address the issue of whether the vote of CT Page 8287 July 20, 2006 constituted action by that body.
In light of the above, the plaintiff’s motion for summary judgment seeking a writ of mandamus to compel the defendant to issue a certificate of approval of the plaintiff’s subdivision is denied. The defendant’s motion for summary judgment that a writ of mandamus is not proper under these circumstances as matter of law is granted.
 See also, General Statutes § 8-7d and § 8-26d regarding additional statutory framework on deadlines for an action by a planning commission.
 See, 109 North, LLC v. New Milford Planning Commission, Superior Court, judicial district of Danbury, Docket No. DBDCV 06-4006264S. As has been noted, “. . . it is possible for the commission’s action to satisfy section 8-26 and still be void as an abuse of discretion.”Miles v. Foley, 253 Conn. 381, 390, 752 A.2d 503 (2000).