October 31, 2022
Practical Law Canada Competition, of which I am Lawyer Editor, published a new Legal Update that discusses two recent class action related decisions by the British Columbia Supreme Court (BCSC) where territorial jurisdiction was challenged in relation to, among other things, violations of the conspiracy and deceptive marketing provisions of the Competition Act. In both cases, the BCSC found that the plaintiffs had satisfied the requirements to establish a real and substantial connection between British Columbia and the facts pleaded against the defendants pursuant to section 3 of the Court Jurisdiction and Proceedings Transfer Act and based on prior jurisdiction-related case law.
Below is an excerpt with a link to the full Legal Update.
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On October 6, 2022, the British Columbia Supreme Court (BCSC), in Cheung v. NHK Spring Co., Ltd., 2022 CarswellBC 2778 (B.C. S.C.) (Cheung), issued a decision certifying a class action under section 4(1) of the Class Proceedings Act, R.S.B.C. 1996, c. 50 (BCCPA), in relation to alleged price-fixing of computer hard-drive components known as suspension assemblies (Assemblies) by Japanese manufacturers.
Shortly after, on October 14, 2022, the BCSC issued another consumer class action-related decision, in Stephens v. JUUL Labs Canada, Ltd., 2022 CarswellBC 2848 (B.C. S.C.) (Stephens), dismissing the defendants’ application for an order dismissing or staying the proceedings based on lack of jurisdiction in a class action alleging a civil conspiracy and deceptive marketing claims in relation to the sale and marketing of their JUUL e-cigarette devices.
With respect to jurisdictional challenges brought by the defendants in both of these cases, the BCSC held that the test for territorial jurisdiction set out in section 3 of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c.28 (CJPTA) had been met and, in particular, there was a real and substantial connection between British Columbia and the facts pleaded by the class action plaintiffs.
The provisions of the CJPTA are, in part, a codification of the common law tests for jurisdiction, including in relation to forum non conveniens and jurisdiction simpliciter. Section 3 of the CJPTA addresses what was previously referred to as jurisdiction simpliciter and lists the circumstances where a British Columbia court has territorial competence over a person, including where there is a real and substantial connection between the province and the facts pleaded against the person. Section 10 of the CJPTA, in turn, contains a non-exhaustive list of circumstances that are presumed to establish a real and substantial connection to British Columbia, including torts committed in the province.
In applying the two-stage test for jurisdiction set out in Ewert v. Höegh Autoliners AS, 2020 CarswellBC 1619 (B.C. C.A.) (Ewert) under the CJPTA, the BCSC held that the plaintiffs in both cases successfully established a presumption of a real and substantial connection to British Columbia based on the relevant facts of the cases (stage 1) and that the defendants failed to rebut that presumption (stage 2).
Importantly, the BCSC in these decisions affirmed previous case law that held that territorial jurisdiction can be based only on harm occurring to Canadian consumers despite other activities in foreign jurisdictions, that the presumption of jurisdiction under section 3 of the CJPTA is “likely to be determinative” and that the burden on defendants to rebut this presumption is heavy.
These recent British Columbia territorial jurisdiction cases are discussed in more detail below.
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For the full Legal Update, see here.
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