Leaf v. Hershey Canada Inc.
Page 12
the application, ruling that the plaintiff had pleaded the elements necessary to
support a finding of territorial competence and that the defendants had not rebutted
the finding. The defendants appealed.
[45] The Court of Appeal noted that many of the defendants’ submissions on
appeal were directed at deficiencies in the plaintiff’s pleading, as opposed to the
issue of territorial competence. The submissions made in that case were
summarized at para. 19 as follows:
[19]
… In particular, the defendants contended, Ms. Fairhurst had not
“properly pleaded that a conspiracy ‒ or any other tort [had] occurred in
British Columbia”; she had “failed to sufficiently describe the parties to the
alleged conspiracy and their relationship as amongst each other”; she had
failed to “identify any unlawful act or acts engaged in by the Defendants”; she
had failed to show that “any alleged wrongful act was directed at her or others
in British Columbia”; and it was “implausible” to assert a conspiracy by any of
the defendants with persons who are their customers. Finally, it was said, the
plaintiff had “made no allegation and adduced no facts that would make such
an alleged conspiracy credible.”
[46] At para. 20, the Court of Appeal rejected those arguments as being outside
the scope of the application challenging jurisdiction. It stated:
[20]
With respect, many of these arguments assume incorrectly that the
chambers judge was required to determine on this application whether a
cause of action was made out. The only application before her related to
territorial jurisdiction. . . . In the present application, it was not open to the
court below, nor is it open to this court, to make findings of fact on disputed
evidence. As this court stated in Purple Echo Productions, supra:
... the nature of the inquiry does not change merely because
evidence is adduced. The objective is to determine whether
there are facts alleged, which if true, would found jurisdiction.
The court is not charged with the task of determining whether
the facts are true. A plaintiff need show only an arguable case
that they can be established. [At para. 34.]
[21]
Nor is it our task to weigh the ‘implausibility’ of the claim as pleaded.
Thus the defendants’ objection that:
To allow the Plaintiff to benefit from the statutory presumption
in circumstances where the Claim asserts nothing more than a
bald allegation of conspiracy, is bereft of jurisdictional facts
regarding the alleged involvement of each of the Defendants,
and makes assertions on behalf of a class of indirect
purchasers essentially renders foreign defendants subject to
legal proceedings in British Columbia based on nothing more