The Follies of Forum Shopping

By Jeremy Burgess
Categories: Blog, Litigation

In my previous articles, Choice of Law: When your Actions Revoke your Choice and Here, There or Anywhere: Where to Sue and be Sued, I discussed the interactions between attornment (submitting yourself to the authority of a particular Court’s jurisdiction), territorial competence, the forum of convenience and the law informing where litigation will proceed. These issues all intersected in the recent decision, Boyd v. Cook, 2016 BCCA 424 (CanLII).

The Plaintiffs were from Alberta and had lost significant funds invested in an Albertan mortgage investment company as a result of said funds being allegedly invested without authorization into a failed project in British Columbia.

The Plaintiffs had commenced a claim in Alberta, but did not bring it within the two year limitation period imposed by Alberta’s Limitation Act. As such, the claim was summarily dismissed for having missed the legislatively imposed deadline for commencing a claim and the dismissal was upheld on appeal.

The Plaintiffs then tried again by commencing essentially the same claim in BC. While not explained in the judgment, the claim was undoubtedly commenced in British Columbia as a result of the transition provisions of BC’s more recent Limitation Act which would have provided for a six year limitation period.

It is noted for the reader that limitation periods vary across Canada. In BC, many claims used to be governed by a six year limitation period, but all claims are now governed by a two year limitation period.

In respect to the Plaintiffs’ actions, the Defendant sought orders to have the Plaintiffs’ claim dismissed on the basis that it did not fall within the BC courts’ jurisdiction, to have the BC courts decline jurisdiction because it was not the more appropriate forum, to strike the claim for being res judicata (heard and determined previous) or to be struck as an abuse of process.

The Court of Appeal was inclined to disagree with the lower court that the case had any real and substantial connection to BC. That said, the decision turned on s. 4(1) of the Limitation Act which provides that if the law of another jurisdiction (Alberta), is to be applied the law of that jurisdiction must apply with respect to the applicable limitation periods. The Court reiterated a decision of the Supreme Court of Canada that stands for the principal that the law of the place where wrongdoing happened is the law that is to be applied.

The Court of Appeal ultimately found that, as a result of s. 4(1) of the Limitation Act, that the limitation law of Alberta was imported into the case. It flowed as a result that the issue of the limitation period had already been determined by the Albertan courts and the case was res judicata as a result.

Boyd again underlines how crucial it is for parties to make an early and informed decision as to where they will pursue their claims to ensure they are pursued in a timely manner and in the proper jurisdiction. Whether there may have been legs to the underlying claims of wrongful conduct, the manner in which litigation was pursued closed the door on having those claims substantively adjudicated.


Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about the foregoing or a legal dispute or potential legal dispute, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.