Venue

How BC law treats it

Venue is different from jurisdiction and from applicable law. Jurisdiction asks whether a BC court can hear the case at all. Under the Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c 28, a BC court has territorial competence if, for example, the defendant is ordinarily resident in BC or there is a real and substantial connection between BC and the facts (ss. 3 and 10). Even then, the court may decline to hear the case if another forum is clearly more appropriate (s. 11, forum non conveniens). Within BC, the Supreme Court Civil Rules, BC Reg 168/2009 let the plaintiff choose the registry where the notice of civil claim is filed and name the place of trial. A party who thinks another location is more appropriate can apply to the court to change it. The law applied does not change with the registry. In Provincial Court small claims, the Small Claims Rules direct where a claim is filed, generally by reference to where the defendant lives or carries on business or where the transaction happened. Parties to a commercial contract can agree on the forum. Courts enforce forum selection clauses unless the resisting party shows strong cause (Z.I. Pompey Industrie v ECU-Line N.V., 2003 SCC 27). In consumer contracts of adhesion, public policy factors can displace the clause (Douez v Facebook, Inc., 2017 SCC 33). In arbitration, the parties choose the seat. Under the Arbitration Act, SBC 2020, c 2, the seat determines which court supervises the arbitration, while hearings can take place elsewhere or online.

What it means for your business

Where a dispute is heard affects cost, convenience and leverage. A BC business that signs a supplier contract choosing Ontario or a foreign court may have to litigate far from home, with outside counsel and travel costs. A clear forum clause, often paired with a governing law clause, reduces arguments about where to sue and avoids a preliminary jurisdiction fight that can take months. Businesses dealing with consumers should know that a one sided forum clause in standard terms may not hold. Example: A Kelowna equipment supplier sues a customer in the Vancouver registry because its contract names the courts of British Columbia, sitting in Vancouver. The customer applies to move the trial to Kelowna, arguing the witnesses and equipment are there.

Risks and common mistakes

Confusing venue with jurisdiction, or assuming the law applied changes depending on which BC registry hears the case. Signing a contract with a foreign forum selection clause without considering the cost of litigating there. Including a forum clause but no governing law clause, leaving the applicable law open to argument. Assuming a forum clause in consumer standard terms will always be enforced. Delaying a challenge to jurisdiction or forum, which can be treated as accepting the court's jurisdiction.