



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Preymann v. Ayus Technology Corporation,









2012 BCCA 30




Date: 20120123

Docket: CA039214

Between:

Hans-Christian
Preymann

Appellant

(Plaintiff)

And

Ayus Technology
Corporation

Respondent

(Defendant)




Before:



The Honourable Madam Justice Ryan





The Honourable Mr. Justice Donald





The Honourable Madam Justice Garson




On appeal from: 
Supreme Court of British Columbia, July 11, 2011
(
Preymann v. Ayus Technology Corporation
, Vancouver Docket No. S110770)




Counsel for the Appellant:



J.D. Shields





Counsel for the Respondent:



T.S. Kent





Place and Date of Hearing:



Vancouver, British
  Columbia

November 30, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 23, 2012









Written Reasons by:





The Honourable Madam Justice Garson





Concurred in by:





The Honourable Madam Justice Ryan

The Honourable Mr. Justice Donald










Introduction

[1]

Mr. Preymann, the plaintiff in this proceeding, appeals a judgment of
Mr. Justice Leask which stayed this action on the ground that, although
the British Columbia Supreme Court has territorial competence over the
proceeding, jurisdiction should be declined in favour of the courts of
Austria.  In so ordering, the chambers judge relied on the fact that the
contract between the parties contained a forum selection clause in which the
parties chose Austria as the forum in which to resolve any disputes arising
from the agreement between them.

[2]

The appellant says the forum selection clause contained in the agreement
is ambiguous and ought not to be enforced.  He also contends that, because the
Court
Jurisdiction and Proceedings Transfer Act
, S.B.C. 2003, c. 27 [the
CJPTA
or the
Act
], governs questions of territorial competence and is
silent on the effect of a forum selection clause, the forum selection clause
ought not to be a factor in a courts consideration of territorial competence.

[3]

The respondent contends that the chambers judge did not err in his
reliance on the forum selection clause.

Reasons for Judgment

[4]

The chambers judge found that the British Columbia Supreme Court did
have territorial competence over the proceeding.  However he determined that he
should nevertheless decline jurisdiction on account of the forum selection
clause and stayed the action.  He relied on this Courts judgment in
Viroforce Systems Inc. v. R&D Capital Inc.,
2011 BCCA 260, 336 D.L.R.
(4th) 570.  The chambers judges reasons for declining jurisdiction are set out
at paras. 3  6 of his reasons:

[3]        The plaintiff's position is that the facts support
jurisdiction in British Columbia:  first, the defendant is a British Columbia
company; second, the defendant has its registered and records office in British
Columbia; third, the plaintiff is a shareholder of the defendant company and
has rights pursuant to the
B.C. Business Corporations Act
.  The
plaintiff has British Columbia counsel.  The defendant has British Columbia
counsel.  The business office of the defendant is in British Columbia.  The
president of the defendant is located in Vernon, British Columbia, and he
signed two of the documents in issue.  Execution would be in British Columbia.

[4]        I think the plaintiff's position is summed up in
these two sentences:

This is a simple debt collection matter.  The plaintiff is
entitled to get paid back the funds he lent to the defendant here in British
Columbia.

[5]        The Court heard argument on the jurisdiction of
the B.C. courts and
forum non conveniens
on May 13 of this year and
reserved and requested further written submissions from the parties, which both
provided.  Following the written submissions being received by the Court, a
decision was made by the B.C. Court of Appeal -
Viroforce Systems Inc. v.
R&D Capital Inc.
, 2011 BCCA 260.  In that decision, Mr. Justice Tysoe,
speaking for the Court, said this at paragraph 14:

In my opinion, the Act does not alter the general approach
to be taken when the parties agree to a forum selection clause. If it is determined
or assumed that the British Columbia court has territorial competence, the
issue is whether the court should decline jurisdiction, either because the
forum selection clause ought to be enforced or a consideration of the factors
contained in s. 11 of the Act leads to the conclusion that a court in another
jurisdiction is a more appropriate forum. The existence of a forum selection
clause can, by itself, be sufficient reason for a court to decline
jurisdiction, and it is not simply one of the factors to consider in making a
determination under s. 11. It will not be necessary in all cases to first
determine whether there is territorial competence because it may be clear that
the forum selection clause will govern the outcome of the matter.

The conclusion of the Court is at paragraph 18:

The chambers judge was correct in her conclusion that the
action should be stayed because even if the Supreme Court of British Columbia
has territorial competence, it should decline to exercise the jurisdiction
because the forum selection clause ought to be enforced.

[6]        It is my view that
despite the careful submissions of counsel for the plaintiff, who has politely
suggested that the Court of Appeal is wrong and also pointed out that it is
possible for its decision to be distinguished, I am of the view that on the
facts of this case, I am bound by the decision of the Court of Appeal and, for
that reason, I echo the decision of the chambers judge in
Viroforce
and
I order that the action brought by the plaintiff should be stayed.

Relevant Provisions of the
CJPTA

[5]

The pertinent sections of the
CJPTA
are ss. 2, 3, and 11:

Application of this Part

2
(1) In this Part, court means a court
of British Columbia.

(2) The territorial
competence of a court is to be determined solely by reference to this Part.

Proceedings against a person

3
A court has territorial competence in a
proceeding that is brought against a person only if

(a) that person is the plaintiff in another proceeding
in the court to which the proceeding in question is a counterclaim,

(b) during the course of the proceeding that person
submits to the court's jurisdiction,

(c) there is an agreement between the plaintiff and that
person to the effect that the court has jurisdiction in the proceeding,

(d) that person is ordinarily resident in British
Columbia at the time of the commencement of the proceeding, or

(e) there is a real and
substantial connection between British Columbia and the facts on which the
proceeding against that person is based.

Discretion as to the exercise of territorial competence

11
(1) After considering the interests of
the parties to a proceeding and the ends of justice, a court may decline to
exercise its territorial competence in the proceeding on the ground that a
court of another state is a more appropriate forum in which to hear the
proceeding.

(2) A court, in deciding the question of whether it or a
court outside British Columbia is the more appropriate forum in which to hear a
proceeding, must consider the circumstances relevant to the proceeding,
including

(a) the comparative convenience and expense for the
parties to the proceeding and for their witnesses, in litigating in the court
or in any alternative 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.

Facts

[6]

The appellant, Hans-Christian Preymann, is a resident of Salzburg, Austria.

[7]

Joseph Reschreiter, the president of the respondent, resides in Vernon,
British Columbia, but regularly visits Austria.

[8]

The respondent, Ayus Technology Corporation is, according to the
pleadings, a British Columbia company with a registered office in Kelowna,
British Columbia.

[9]

It is pleaded that the parties entered into an agreement dated May 26,
2008, in which the appellant agreed to lend the respondent one million Euros
(the Agreement). The Agreement was amended on May 26, 2010 (the Amended
Agreement).  The agreements between the parties are in German and in the first
instance were translated (presumably in anticipation of this proceeding) by the
respondent.

[10]

The Agreement contains what is both here and commonly referred to as a
forum selection clause, as follows:

Any disputes
between AYUS and/or one of its shareholders as one party and the investors or
an investor as the other party shall be subject to the laws of the Republic of
Austria.  Venue is the factually competent court of the City of Salzburg.

[11]

An Amended Agreement altered the terms of the loan and contained the
following different forum selection clause:

The contractual
parties agree that any disputes arising from this agreement shall be subject to
the exclusive jurisdiction of the factually competent court in the City of
Salzburg, Austria. This agreement is governed solely by the laws of the
Republic of Austria excluding UN Commercial Law.

[12]

The appellant says the word exclusive in the first sentence of the
translated version of the agreement is not found in the original text of the
Amended Agreement.  Owing to its concern about the accuracy of the translation,
the appellant obtained and tendered into evidence two additional translations
of the forum selection clause.  The first translation provides as follows:

For possible
disputes resulting from this agreement, the contractual parties agree that the
City of Salzburg, Austria shall be the competent jurisdiction.  This agreement
is subject exclusively to Austrian law with the exception of the United Nations
Convention on Contracts for the International Sale of Goods.

[13]

The second translation, which the respondent
says should not be accepted as accurate, provides:

The parties
to this contract agree that any disputes arising from it shall be subject to
the jurisdiction of the factually competent court in the City of Salzburg,
Austria.  This agreement is governed exclusively by the laws of the Republic of
Austria, excluding UN Commercial Law.

[14]

The chambers judge did not make any finding of fact as to which of these
is a correct translation.

[15]

It is alleged that the respondent defaulted on the loan after August 1,
2010.

[16]

The appellant commenced proceedings in British Columbia on February 7,
2011.

Positions of the Parties

[17]

The respondent concedes that the British Columbia Supreme Court has
territorial competence over this proceeding.

[18]

The appellant argues that forum selection clauses are not
relevant to territorial competence because the
CJPTA
, a complete code on
questions of jurisdiction, is silent as to forum selection clauses.  He argues
that the
CJPTA
requires a court to first determine whether territorial
competence is established pursuant to ss. 3, 7 and 10 and then to conduct a s.
11 analysis, considering all of the mandatory factors listed therein in order
to determine whether the court should decline to exercise its territorial
competence.  He argues that s. 11s list of mandatory considerations does not
mention forum selection clauses and that the
Act
does not elsewhere
provide that forum selection clauses, selecting a jurisdiction other than
British Columbia, preclude or weigh against the exercise of territorial
competence by British Columbia courts.  The appellant concludes that, as a
result, such clauses should not be considered.  He also notes that, as per s.
2(2) of the
CJPTA
, Part 2
solely determines
questions of the territorial
competence of British Columbia courts.

[19]

In support of his submission that forum selection clauses selecting
jurisdictions other than British Columbia are not relevant to the question of
territorial competence, the appellant submits that this Courts decision in
Viroforce
is wrongly decided as it contradicts authority from the Supreme Court of
Canada:
Teck Cominco Metals Ltd. v. Lloyds Underwriters
, 2009 SCC 11,
[2009] 1 S.C.R. 321.  He argues that
Teck
was not considered or referred
to in
Viroforce
, or alternatively, he argues that
Viroforce
can
be distinguished.

[20]

The thrust of the appellants second argument appears to be that, upon
consideration of the factors enumerated in s. 11(2) of the
CJPTA
, the
chambers judge should have found that a stay was not merited.  He also
makes the related argument that, in this case, consideration of the factors
listed in s.11(2) shows that there is strong cause which justifies declining
to enforce a forum selection clause (see
Z.I. Pompey Industrie v. ECU-Line
N.V.
, 2003 SCC 27, [2003] 1 S.C.R. 450 at paras. 25  27).

[21]

Finally, he argues that, in any event, the amended forum selection clause
in question does not contain the exclusive language that is necessary to render
it enforceable.  He relies on this Courts decision in
Old North State
Brewing Company v. Newlands
(1998), 58 B.C.L.R. (3d) 144, which states at
para. 35 that [a]n ambiguous choice of jurisdiction clause will not be
construed to grant exclusive jurisdiction.

[22]

The respondent counters that whatever translation of the forum selection
clause is used, the clause speaks in mandatory language, if not the language of
exclusivity, and should be enforced.  It says that it does not matter that the
chambers judge did not make a specific finding of fact as to which translation
was correct as the parties clearly intended to resolve disputes in Austria
according to Austrian law.

[23]

The respondent submits that
Viroforce
is not inconsistent with
the
CJPTA
because the
CJPTA
does not preclude application of the
common law pertaining to forum selection clauses.  The respondent submits that
Teck
held that the
Act
is a codification of the common law test for
forum
non conveniens
.  It submits that this does not preclude a court from
considering other relevant issues that may arise in the course of identifying
the appropriate forum for a proceeding, such as when to enforce forum selection
clauses.

Analysis

[24]

On the facts of this case, there is no question that British Columbia
has territorial competence over the proceeding.

[25]

I agree with the respondent that, whichever version of the forum
selection clause is considered, the language is clear that the parties intended
Austrian law to govern and that, in the event of a dispute, Austrian courts would
have jurisdiction over the dispute.

[26]

As already noted, the chambers judge considered this Courts judgment in
Viroforce
to be determinative of the question before him.  The appellant
argues that this Court is not bound by, and ought not to follow
Viroforce
.

[27]

Below I refer to two recent Saskatchewan Court of Appeal judgments that cite
Viroforce
with approval.  It follows that the appellant argues that we
ought not to follow the Saskatchewan decisions either.

[28]

I would not, for the reasons explained below, grant the appeal.

[29]

Before turning specifically to
Viroforce
and the Saskatchewan cases,
I will review
Teck
.
Teck
is pertinent to the question of the
correct interpretation of s. 11 of the
CJPTA
and was not cited in
Viroforce
.  At paras. 21  22 of
Teck
, the Chief Justice speaking
for a unanimous court held that s. 11 was a complete codification of the common
law test for
forum non conveniens
.  She held:

[21]      The first argument is that s. 11 of the
CJPTA
does
not apply where a foreign court has asserted jurisdiction.  I cannot
agree.  The
CJPTA
creates a comprehensive regime that applies to
all cases where a stay of proceedings is sought on the ground that the action
should be pursued in a different jurisdiction (
forum

non conveniens
). 
It requires that in every case, including cases where a foreign judge has
asserted jurisdiction in parallel proceedings, all the relevant factors listed
in s. 11 be considered in order to determine if a stay of proceedings is
warranted.  This includes the desirability of avoiding multiplicity of
legal proceedings.  But the prior assertion of jurisdiction by a foreign
court does not oust the s. 11 inquiry.

[22]
Section 11 of the
CJPTA
was intended to
codify the
forum non conveniens
test, not to supplement it.
The
CJPTA
is the product of the Uniform Law Conference of Canada. 
In its introductory comments, the Conference identified the main purposes of
the proposed Act, which included bringing Canadian jurisdictional rules into
line with the principles laid down by the Supreme Court of Canada in
Morguard
Investments Ltd. v. De Savoye
, [1990] 3 S.C.R. 1077, and
Amchem Products
Inc. v. British Columbia (Workers Compensation Board)
, [1993] 1 S.C.R.
897 (
Uniform Law Conference of Canada  Commercial Law Strategy
(loose-leaf),
at p. 3).  Further, the drafters of the model Act confirmed that s. 11 of
the
CJPTA
was intended to codify the common law
forum non conveniens
principles
in comments to section 11:

11.1
Section 11 is meant to codify the doctrine
of forum non conveniens, which was most recently confirmed by the Supreme Court
of Canada in
Amchem Products Inc. v. British Columbia
(1993).  The
language of subsection 11(1) is taken from
Amchem
and the earlier cases
on which it was based.  The factors listed in subsection 11(2) as relevant
to the courts discretion are all factors that have been expressly or
implicitly considered by courts in the past. [p. 11]

Section 11 of the
CJPTA
thus constitutes a complete codification of the common law test for
forum
non conveniens
.  It admits of no exceptions.

[Emphasis added.]

[30]

I now turn to
Viroforce
.  The appellant argues that
Viroforce
,
at paras. 13  14, conflicts with
Teck
.  Tysoe J.A. explained how a
forum selection clause fits into the jurisdictional analysis:

[13]      The decision in
Momentus.ca Corp. v. Canadian
American Assn. of Professional Baseball Ltd.
, 2010 ONCA 722 at paras. 35 to
39, 325 D.L.R. (4th) 685, leave to appeal granted [2010] S.C.C.A. No. 473,
contains a useful discussion of the manner in which forum selection clauses fit
into the jurisdictional analysis. It is first determined whether the court in
question has or can assume jurisdiction. If so, the question becomes whether
the court should take jurisdiction. In this regard, the court will decline
jurisdiction for one of two reasons - the enforcement of a forum selection
clause or a determination of
forum non conveniens
.

[14]      In my opinion, the
Act
does not alter the general approach to be taken when the parties agree to a
forum selection clause. If it is determined or assumed that the British
Columbia court has territorial competence, the issue is whether the court
should decline jurisdiction, either because the forum selection clause ought to
be enforced or a consideration of the factors contained in s. 11 of the
Act
leads to the conclusion that a court in another jurisdiction is a more appropriate
forum. The existence of a forum selection clause can, by itself, be sufficient
reason for a court to decline jurisdiction, and it is not simply one of the
factors to consider in making a determination under s. 11. It will not be
necessary in all cases to first determine whether there is territorial
competence because it may be clear that the forum selection clause will govern
the outcome of the matter.

[31]

Two decisions of the Saskatchewan Court of Appeal were released on November
15, 2011:
Microcell Communications Inc. v. Frey
, 2011 SKCA 136, and
Hudye
Farms Inc. v. Canadian Wheat Board
, 2011 SKCA 137.  Speaking for unanimous divisions
of the court in both cases, Jackson J.A. held that, [t]he validity and effect
of a forum selection clause arise as part of the determination of whether the
territory should
decline
territorial competence and not as part of the
determination of whether the territory has competence at all (
Hudye
at
para. 8).  Further, she held that the presence of a forum selection clause is a
weighty factor speaking in favour of declining to exercise territorial
competence unless the plaintiff can establish strong cause for refusing to
enforce such a clause.  (
Hudye
at paras. 8  11 and
Microcell
at paras. 106  115).

[32]

In both judgments, Jackson J.A. indicated her agreement with this Courts
decision in
Viroforce
and rejected the notion that, because the
CJPTA
is silent on the question of the effect of a forum selection clause selecting a
jurisdiction other than British Columbia, such a clause ought not be considered
in a courts decision as to whether to decline to exercise territorial
competence (see:
Hudye
at paras. 8  11 and
Microcell
at paras.
106  115).  She held that forum selection clauses are relevant to that
inquiry.  (I note that she was considering s. 10 of Saskatchewans
Court
Jurisdiction and Proceedings

Transfer Act
, S.S. 1997, c. C-41.1,
which corresponds to s. 11 of British Columbias
CJPTA
.)

[33]

At paras. 112  114 of
Microcell
, Jackson J.A. explained how, in
her view, consideration of a forum selection clause fits within the
forum
conveniens
analysis:

[112]    The effect of a forum
selection clause arises as part of the determination as to whether the
territory should
decline
territorial competence. Declining territorial
competence occurs according to the framework of s. 10 of the
CJPTA
,
which I repeat here for ease of reference:

10(1)  After considering the
interests of the parties to a proceeding and the ends of justice, a court may
decline to exercise its territorial competence in the proceeding on the ground
that a court of another state is a more appropriate forum in which to try the
proceeding.

(2)  A court, in deciding the
question of whether it or a court outside Saskatchewan is the more appropriate
forum in which to try a proceeding, shall consider the circumstances relevant
to the proceeding, including:

(a)        the
comparative convenience and expense for the parties to the proceeding and for
their witnesses, in litigating in the court or in any alternative 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.

Not found among this list is reference to a forum selection clause,
which raises the question whether the presence of a forum selection clause is
but one general factor among many to be considered as part of clause 10(2)(f).
This question, as well, has been answered by the Court in
Viroforce
:

[14]      ... If it is determined
or assumed that the British Columbia court has territorial competence, the
issue is whether the court should decline jurisdiction, either because the
forum selection clause ought to be enforced or a consideration of the factors
contained in s. 11 [Saskatchewan's s. 10] of the
Act
leads to the
conclusion that a court in another jurisdiction is a more appropriate forum.
The
existence of a forum selection clause can, by itself, be sufficient reason for
a court to decline jurisdiction, and it is not simply one of the factors to
consider in making a determination under s. 11.
It will not be necessary in
all cases to first determine whether there is territorial competence because it
may be clear that the forum selection clause will govern the outcome of the
matter. [Emphasis added by Jackson J.A.]

The Court of Appeal noted
Hudye Farms Inc. v. Canada Wheat
Board
, 2011 SKQB 29, [2011] 5 W.W.R. 506 as one example of this approach
and
Hans v. Volvo Trucks North America Inc
., 2010 BCSC 1700 as another.
In both of these lower court decisions, the Courts followed the approach of
determining whether territorial competence should be declined under s. 10 of
the
CJPTA
by applying
Pompey
. This Court affirmed
Hudye
in
a judgment being released today (see: 2011 SKCA 137).

[113]

While there is no specific reference to a
forum selection clause in s. 10 of the
CJPTA
, the effect of a valid
forum selection clause must be considered in the context of a consideration of
the "fair and efficient working of the Canadian legal system as a
whole" (see s. 10(2)(f)). For all the reasons that were articulated in
Pompey
,
great weight should be given to the parties' contractual choice of the
appropriate forum. The way to give sufficient recognition to the forum
selection clause is to place the burden on the person who asserts that the
contract should be ignored and further, to give predominance to the strong
cause test, as defined in
Pompey
.

[114]    I agree with Tysoe J.A.
that there is no reason to interpret the
CJPTA
on the question of the
effectiveness of a forum selection clause any differently than the common law
as represented by
Pompey
. Notwithstanding the enactment of the
CJPTA
,
in the face of a valid, enforceable forum selection clause, the traditional
burden of proof, which is normally on the defendant to convince the Court that
competence should be declined, is on the plaintiff to demonstrate why the forum
selection clause should not be enforced. If it is determined that the Court
should not give effect to the forum selection clause, it is possible to go on
to consider whether territorial competence should be declined on some other
basis. While it is difficult to conceive of a fact situation where that would
be so, it is nonetheless theoretically possible (see:
Viroforce
at para.
14).

[34]

And at para. 12 of
Hudye
, Jackson J.A. summarized the analytical
steps a court should undertake in determining if it ought to enforce a forum
selection clause:

When a defendant applies pursuant to the
CJPTA
for an
order that the Court decline competence over an action, the framework for
analysis takes this general form:

1.         Does
the Province have territorial competence over the matter? If no, the action
cannot continue. It may be appropriate in a given case to bypass this issue and
proceed to the next step.

2.         If the
Province has territorial competence or assuming territorial competence, has the
defendant/applicant established that the forum selection clause is valid, clear
and enforceable and that it applies to a cause of action before the Court? If
no, the application fails.

3.         If the
forum selection clause is valid, clear and enforceable, and it applies to a
cause of action before the Court, has the plaintiff/respondent shown strong
cause why the Court should not give effect to the forum selection clause?

4.         If the
plaintiff/respondent has not shown strong cause why the Court should not give
effect to the forum selection clause, the Court should consider, according to
the application before it, whether it is appropriate to transfer the proceeding
to some other territory pursuant to Part III of the
CJPTA
.

If the answer to the third
question is yes, it remains at least theoretically possible that the defendant
may be able to demonstrate some other basis for the Court to decline competence
pursuant to s. 10 (see:
Viroforce
at para. 14).

[35]

I note that in
Microcell
at para. 89, Jackson J.A. notes
that the Supreme Court of Canada in
Teck
describes s. 10 (s. 11 in
British Columbia) as providing a complete code of relevant considerations in a
forum
non conveniens
analysis.  It is therefore clear that she was aware of both
decisions:
Teck
and
Viroforce
.  She did not find that the cases
conflict.

[36]

The Saskatchewan cases and
Viroforce
are united on the
point that the
CJPTA
does not oust consideration of common law
principles pertaining to forum selection clauses.

[37]

Pompey
was relied on by Tysoe J.A. in
Viroforce
and by
Jackson J.A. in the Saskatchewan decisions.  It is important to note that the
Court held in
Pompey
at paras. 20  21, that applications considering
forum
conveniens
and forum selection clauses should be separate inquiries;
therefore, the Courts statements in
Teck
pertaining to
forum
conveniens
do not mean that the
CJPTA
obviates common law principles
pertaining to forum selection clauses.  In other words, based on
Pompey
,
it could be argued that while s. 11 codifies the common law pertaining to
forum
conveniens
, it did not similarly codify the forum selection clause
analysis.

[38]

In
Pompey
, the Court held that:

[21]  There is a similarity between the factors which are to
be taken into account when considering an application for a stay based on a
forum selection clause and those factors which are weighed by a court
considering whether to stay proceedings in ordinary cases applying the
forum
non conveniens
doctrine...In the latter inquiry, the burden is normally on
the defendant to show why a stay should be granted, but
the presence of a
forum selection clause in the former is, in my view, sufficiently important to
warrant a different test
, one where the starting point is that parties
should be held to their bargain, and where the plaintiff has the burden of
showing why a stay should not be granted.
I am not convinced that a
unified approach to
forum non conveniens
, where a choice of jurisdiction
clause constitutes but one factor to be considered, is preferable
.  As
Peel
,
supra
, notes, at p. 190, I fear that such an approach would
not

ensure that full weight is given to
the jurisdiction clause since not only should the clause itself be taken into
account, but also the effect which it has on the factors which are relevant to
the determination of the natural forum.  Factors which may otherwise be
decisive may be less so if one takes into account that the parties agreed in
advance to a hearing in a particular forum and must be deemed to have done so
fully aware of the consequences which that might have on, for example, the
transportation of witnesses and evidence, or compliance with foreign procedure
etc.

In my view, a separate approach to applications for a stay
of proceedings involving forum selection clauses in bills of lading ensures
that these considerations are properly taken into account and that the parties
agreement is given effect in all but exceptional circumstances.
See
also M. P. Michell, Forum Selection Clauses and Fundamental Breach:
Z.I.
Pompey Industrie v. ECU-Line N.V., The Canmar Fortune
 (2002), 36
Can.
Bus. L.J.
453, at pp. 471-72.

[Emphasis added.]

[39]

Tysoe J.A. clearly had this distinction in mind, in holding that the
forum selection clause analysis remains a common law inquiry.  If
forum non
conveniens
is exhaustively codified in s. 11 (
Teck
) but forum
selection clauses trigger a separate inquiry (
Pompey
), there is no
concern that
Teck
and
Viroforce
conflict.  The appellant urges us
to disregard
Viroforce
because it was decided without consideration of
binding authority (
Teck
).  I do not agree.
Viroforce
holds that
consideration of the enforcement of a forum selection clause is outside the
Act
,
not just one of the s. 11 factors.  This ratio is in conformity with
Pompey
.

[40]

In this case, I note that in any event, whether one follows the
route taken by Jackson J.A. or the common law analysis followed in
Viroforce,
the result is the same.

[41]

Having concluded this analysis of the applicable common law and
statutory principles in mind, I return to the facts of this case.

[42]

First, it is clear that British Columbia has territorial competence over
the dispute.

[43]

The second question is whether the respondent established that the forum
selection clause is valid, clear and enforceable and that it applies to the
cause of action before the court.  I note that the chambers judge made no
explicit finding in this regard, but, as I have already stated, on any of the
translations tendered in evidence, the intent and meaning of the clause is
clear.  The parties clearly intended that Salzburg, Austria, be the chosen
forum.  Indeed, I cannot see how the clauses, however translated, could be
interpreted in any other manner.

[44]

The third question is whether the appellant has shown strong cause as to
why the court should not give effect to the forum selection clause.  The
chambers judge did not undertake this analysis.  The respondent addresses this
issue by noting that in the court below, there was no evidence from the appellant
to support the contention that Austria was not the most convenient forum.

[45]

The pertinent evidence on the question of
forum conveniens
consisted
of the first and second affidavit of Mr. Reschreiter, president of the
respondent, and the affidavit of Ms. Gordon, assistant to counsel for the appellant. 
Ms. Gordons evidence primarily relates to the result of an Internet search of
the respondents website, stating that its international head office is
located in Vernon, British Columbia.  The appellant did not adduce any further
evidence on the convenient forum question.  By contrast, Mr. Reschreiter
tendered a detailed account of the circumstances of the parties dealings, most
of which, according to him, took place in Austria.  He noted that both parties
had Austrian counsel who were actively engaged on the file and that most of the
potential witnesses are located in Austria.

[46]

There is no question on this evidence that the appellant failed to show
strong cause as to why the court should not enforce the forum selection clause. 
Although the chambers judge did not explicitly consider this evidence, I am
persuaded that he could have reached no other conclusion on the evidence.

[47]

As to the fourth question, neither party applied for an order that the
proceedings be transferred to another jurisdiction.

Conclusion

[48]

I would summarize this analysis in the following manner:

·

In
Teck,
the Court held that s. 11 of the
CJPTA
was
intended to codify the
forum conveniens
common law analysis and admits
of no exceptions.

·

Viroforce
and the Saskatchewan cases are united on the
point that the
Act
does not oust consideration of common law principles
pertaining to forum selection clauses.

·

At common law,
Pompey
decided that applications for a stay
of proceedings based on forum selection clauses constitute a different inquiry
than
forum non conveniens
applications, and that in the case of the
former, strong cause must be shown before the clause will not be enforced.  Both
Viroforce
and the Saskatchewan cases incorporate the strong cause
analysis into their decisions, albeit in different capacities.

·

The Saskatchewan decisions state that consideration of a forum
selection clause is part of the s. 10 analysis in Saskatchewan (s. 11 in
British Columbia).

·

As I have concluded
Viroforce
is not in conflict with
Teck,
it is binding on us.
Viroforce
adheres to the common law analysis, as
described in
Pompey
, which operates independently of s. 11 and
forum
conveniens
.

·

In this case consideration of the forum selection clause on a
common law analysis, or as one of the s. 11 factors, leads to the same result.

[49]

In conclusion, the chambers judge did not err in enforcing the forum
selection clause.  If a dispute involves a contract with a forum selection
clause, once a court has determined that it has territorial competence, it must
consider whether the forum selection clause is clear, unambiguous and
enforceable.  If the clause is clear, then the court must determine if the plaintiff
has discharged the burden of proving that there is strong cause meriting
refusal to give effect to it.  The
CJPTA
scheme recognizes the
importance of facilitating interprovincial and international commerce.  To
interpret the legislation in the manner contended for by the appellant, that is,
to give no effect to private agreements, would frustrate pursuit of that goal. 
I decline to adopt such an interpretation of the
Act
.

Disposition

[50]

I would dismiss the appeal.

The Honourable Madam Justice Garson

I agree:

The Honourable Madam Justice
Ryan

I agree:

The Honourable Mr. Justice
Donald


