In this decision, the British Columbia Court of Appeal (BCCA)
upheld the lower court's decision that there was a real and
substantial connection between British Columbia and the allegations
of criminal anti competition conspiracy advanced in this proposed
class action, demonstrating the willingness of courts to take
jurisdiction even in cases where the alleged activities of mining
companies appear far remote from the harm alleged to have been
suffered. Although decided under British Columbia's Court
Jurisdiction and ProceedingsTransfer Act (Act), the
principles underlying the Act are similar to those recently adopted
by the Supreme Court of Canada (SCC) in Van Breda (see
The allegation made by the plaintiff in this action is that the
defendants conspired with one another to drive up the price of gem
grade diamonds sold in Canada and British Columbia, thereby causing
harm to consumers.
In challenging the jurisdiction of British Columbia courts to
hear the action, the defendants asserted that they do not carry on
business in British Columbia and that they are not involved in the
sale of gem grade diamonds. Rather, their involvement is higher in
the "diamond pipeline" as sellers of rough diamonds to
"sightholders." The only defendant with operations in
British Columbia is DeBeers Canada, a mining company that only
began producing diamonds after the proposed class action was
commenced. None of this evidence was persuasive for the BCCA.
The British Columbia "connections" relied upon by the
plaintiff were that the plaintiff (and other members of the
proposed plaintiff class) resides in British Columbia, and that the
defendants, by conspiring to keep the price of gem grade diamonds
artificially high, affected purchasers in British Columbia,
including the plaintiff.
The BCCA noted that pursuant to the Act (which is consistent
with the common law as recently confirmed in Van Breda),
the first connection, without more, does not give rise to the
presumption of a real and substantial connection.
However, the second alleged connection (i.e., that there was a
tort (of conspiracy) committed in British Columbia) would be
sufficient for jurisdiction to be presumed. In this regard, the
plaintiff relied upon the SCC's decision in Moran v. Pyle
National (Canada) Ltd. (Moran) for the proposition that the
tort was committed in British Columbia because that is where the
plaintiff alleges the damage to have been suffered. The BCCA
agreed, finding that the plaintiff had pleaded sufficient
jurisdictional facts for there to be a real and substantial
connection with British Columbia.
In reaching its conclusion, the BCCA acknowledged the
defendants' concerns about participating in an action in a
jurisdiction that seldom, if ever, figures in their
decision-making, but preferred the "important interest a state
has in injuries suffered by persons within its territory" as
noted by the SCC in Moran.
The British Columbia Supreme Court's (BCSC) decision on this
matter (indexed as 2011 BCSC 705) was reported in Mining in the
Courts, Vol. II.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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