IN THE SUPREME COURT OF BRITISH COLUMBIA
Williams v. TST Porter dba 6422217 Canada Inc.,
2008 BCSC 1315
6422217 Canada Inc. and Kelly L. Moldowan
Before: The Honourable Mr. Justice Hinkson
Reasons for Judgment
Counsel for the Plaintiff
Counsel for the Defendants
Stephen D. Jacob
Date and Place of Hearing:
September 10, 2008
 On April 30, 2007, the plaintiff was the driver of a pickup truck that collided with a tractor trailer vehicle owned by the defendant 6422217 Canada Inc. dba TST Porter (the “corporate defendant”), incorrectly named as TST Porter dba 6422217 Canada Inc. At the relevant time the vehicle was operated by the defendant Kelly L. Moldowan. The accident occurred in the Province of Alberta and resulted in what are alleged to be serious injuries to the plaintiff.
 At the time of the accident the plaintiff was resident in British Columbia, and the corporate defendant had a registered office in British Columbia. Mr. Moldowan is a trucker and was, at all material times, resident in the Province of Alberta. Mr. Moldowan’s work duties included driving not only in Alberta, but in all of the western provinces, including British Columbia.
 On March 7, 2008, the plaintiff filed the writ of summons in this action. The defendants concede that this court has territorial competence or jurisdiction simpliciter over the corporate defendant, but argue that this court should decline jurisdiction and enter a dismissal or a stay of these proceedings, due to the concept of forum conveniens.
 The defendants further argue that this court has no territorial competence over Mr. Moldowan, and that even if it does, that it should decline jurisdiction over the plaintiff’s claim and enter a dismissal or a stay of these proceedings based upon the concept of forum conveniens.
 The Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 [CJPTA], came into force in British Columbia on May 4, 2006. Section 2(2) of the CJPTA provides that the territorial competence of the court is to be determined "solely by reference" to Part 2 of the CJPTA.
 Section 3 of the CJPTA sets out the grounds upon which a court may have territorial jurisdiction. Subsections 3(d) and (e) have application here. This court has jurisdiction if an action is brought against a party who was ordinarily resident in British Columbia at the time of commencement of the proceeding (s. 3(d)), or if there is a real and substantial connection between British Columbia and the facts upon which the proceeding against the non-resident defendants is based s. (3(e)).
 In s. 7, the CJPTA defines the circumstances which constitute ordinary residence for a corporation for the purposes of establishing territorial competence under s. 3(d). Subsection 7(a), the circumstance relevant to this case, provides that a corporation is ordinarily resident in British Columbia if it has a registered office in the province.
 Section 10 sets out a non-exhaustive list of circumstances that presumptively constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based. The plaintiff argues that the relevant circumstance from that list in this case is subsection 10(h):
10. Without limiting the right of the plaintiff to prove circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based, a real and substantial connection between British Columbia and those facts is presumed to exist if the proceeding ...
(h) concerns a business carried on in British Columbia.
 Section 11 of the CJPTA codifies the case law on forum conveniens and sets out a non-exclusive list of grounds upon which a court may decline to exercise its territorial competence: Lloyd’s Underwriters v. Cominco Ltd., 2007 BCCA 249 at para. 55, 67 B.C.L.R. (4th) 101 (C.A.), leave to appeal granted  S.C.C.A. No. 322. Pursuant to s. 11(1), a court may decline jurisdiction where “a court of another state is a more appropriate forum in which to hear the proceeding”. Section 11(2) sets out the following non-exhaustive list of factors which a court must consider in determining whether a court outside British Columbia is a more appropriate forum:
(b) the law to be applied to issues in the proceeding,
(c) the desirability of avoiding multiplicity of legal proceedings,
(d) the desirability of avoiding conflicting decisions in different courts,
(e) the enforcement of an eventual judgment, and
(f) the fair and efficient working of the Canadian legal system as a whole.
THE DEFENDANTS’ POSITION
 The defendants argue that the action has primary connections to the Province of Alberta, and few connections to British Columbia. They say that the accident occurred in Alberta, that the accident scene was attended by members of the RCMP stationed in Alberta and that the plaintiff received his initial medical treatment in Alberta. They argue further that the corporate defendant is federally incorporated and registered extra-provincially in Alberta, that Mr. Moldowan has at all material times been resident in Alberta, that Mr. Moldowan has no connection with British Columbia, and that the vehicle driven at the time by Mr. Moldowan was licensed in Alberta.
THE PLAINTIFF’S POSITION
 The plaintiff argues that the corporate defendant has a registered office in British Columbia, and that as a result he is entitled to proceed against that defendant in British Columbia. The plaintiff also contends that because he is entitled to commence proceedings against Mr. Moldowan’s employer, the corporate defendant, in British Columbia, the necessary connection is created to satisfy the requirements of s. 3(e) as defined by s. 10(h) of the CJPTA. He asserts as well that the witnesses as to his condition before and after the accident, as well as many of his treating medical practitioners, reside in British Columbia.
 The concepts of territorial jurisdiction and forum conveniens must be considered separately with a determination of the former preceding the consideration of the latter: Aubichon (Guardian ad litem of) v. Kazakoff,  B.C.J. No. 3058 at para. 7 (S.C.) [Aubichon].
a. Territorial Jurisdiction
 The evidential burden to establish territorial competence rests on the party that seeks to establish the existence of matters supporting a finding of territorial competence: VMAC Racing Ltd. v. B.R. Motorsports Inc., 2008 BCSC 685 at para. 18 [VMAC].
 The fact that the plaintiff is a resident of British Columbia is insufficient to create territorial competence (see Aubichon at para. 8). The corporate defendant conceded that this court has territorial jurisdiction over it because it has a registered office in British Columbia.
 Is the right to bring an action against the corporate defendant in British Columbia sufficient to permit the action against Mr. Moldowan to proceed in British Columbia?
 In Stanway v. Wyeth Canada Inc., 2008 BCSC 847 [Stanway], Gropper J. accepted jurisdiction over non-resident defendants in circumstances where Canadian defendants did not challenge the court’s jurisdiction over them. In so doing, she found that there was a real and substantial connection between British Columbia and the facts upon which the proceeding against the non-resident defendants was based, thus satisfying the requirements of s. 3(e) of the CJPTA.
 I do not consider that the plaintiff can bootstrap his position vis-à-vis Mr. Moldowan only by the fact that he has commenced proceedings against the corporate defendant in British Columbia. The plaintiff must have more than the fact that it is the same claim that he has brought against a company registered in British Columbia to meet the requirements of s. 3(e) of the CJPTA in order to pursue the lawsuit which he wishes to pursue in British Columbia against Mr. Moldowan. The only other connection between the alleged tort and British Columbia is the plaintiff’s residence, and that, too, is insufficient.
 Does the claim against Mr. Moldowan otherwise meet the requirements of s. 3(e) of the CJPTA? The only evidence of any connection between Mr. Moldowan and British Columbia is the fact that, from time to time, Mr. Moldowan’s employment requires him to drive in British Columbia. There is no evidence that his employment required him to drive into British Columbia for any reason that could be said to be related to the collision between his tractor trailer and Mr. Williams’ pickup truck. In the result, I find that there is no real and substantial connection between British Columbia and the facts upon which the proceeding against Mr. Moldowan is based.
b. Forum Conveniens
 The general burden of proof rests on the defendants to persuade the court to exercise its discretion to grant a stay: VMAC at para. 18. Having found no real and substantial connection between British Columbia and the facts upon which the proceeding against Mr. Moldowan is based, the plaintiff is still entitled to pursue his claim against the corporate defendant in British Columbia. Should this court assume jurisdiction over the action against all defendants in this case, as Gropper J. did in Stanway?
 Despite the reliance placed upon the decision of the Ontario Court of Appeal in Muscutt v. Courcelles (2002), 60 O.R. (3d) 20, 213 D.L.R. (4th) 577 (C.A.), by both counsel, it is my view that the relevant considerations with respect to the matter of forum conveniens in British Columbia are found in s. 11 of the CJPTA.
 Insofar as s. 11(2)(a) of the CJPTA is concerned, there is no reason to conclude that the plaintiff’s rights cannot be protected by proceedings in Alberta where the alleged tort is said to have occurred.
 The defendant Moldowan has done nothing in this jurisdiction that bears upon the plaintiff’s claim, and the corporate defendant has done nothing other than establish registration and carry on some business in British Columbia unrelated to that conducted by Mr. Moldowan at the time of the collision with the plaintiff’s pickup. I am not prepared to find that that bears in any meaningful way upon the plaintiff’s claim.
 I do not consider that the activities of either defendant can be said to involve a sufficient risk of harm to non-residents of Alberta to warrant forcing the defendants to litigate in British Columbia.
 I am prepared to accept that there is some unfairness to the plaintiff in depriving him of the opportunity to pursue his claim in British Columbia, but I consider that this is a consequence of his choice to drive in the Province of Alberta. Granted, many of the witnesses on issues relating to the pecuniary and non-pecuniary aspects of his claim reside in British Columbia, but that is insufficient to persuade me that it would be unfair to the plaintiff to require him to adduce their evidence in the Province of Alberta, and certainly it is not impossible for him to do so.
 With respect to ss. 11(2)(c) and (d) of the CJPTA, counsel for Mr. Williams was unable to offer any reason why proceedings against both defendants in this case could not be pursued in the Province of Alberta, so the spectre of a multiplicity of proceedings and inconsistent results can be avoided if proceedings are taken against both defendants in Alberta.
 In Amchem Products Inc. v. British Columbia (Workers’ Compensation Board),  1 S.C.R. 897 at 912, Sopinka J., for a unanimous Court, stated:
The choice of the appropriate forum is still to be made on the basis of factors designed to ensure, if possible, that the action is tried in the jurisdiction that has the closest connection with the action and the parties and not to secure a juridical advantage to one of the litigants at the expense of others in a jurisdiction that is otherwise inappropriate. I recognize that there will be cases in which the best that can be achieved is to select an appropriate forum. Often there is no one forum that is clearly more appropriate than others.
 The purpose of this statement is encapsulated in British Columbia in s. 11(2)(f) of the CJPTA.
 I do not consider that as between British Columbia and Alberta there is no one forum that is not clearly more appropriate than the other. I am satisfied that, while there may be some advantage to the plaintiff in pursuing his claim in British Columbia, Alberta is the forum with the closest connection to the subject matter of the proposed litigation and that the facts upon which the proceeding against the non-resident defendant is based arise in that jurisdiction. I conclude that Alberta is clearly the more appropriate forum in which to litigate the proposed action.
 I was advised by counsel for the plaintiff that as yet there have been no proceedings commenced in Alberta. Neither counsel were able to advise me whether the plaintiff faced any statutory defences, such as a limitation defence, in Alberta. As there may be defences against the plaintiff’s claim in Alberta if proceedings are brought there which would not be available in British Columbia, I am not prepared to dismiss the plaintiff’s action in this jurisdiction.
 In the result, I will, however, direct that the plaintiff’s action in British Columbia be stayed, pending further order of this Court, should an action in Alberta be met with defences that are not available in British Columbia, or in the event that the plaintiff’s claim is resolved in Alberta.