Library:

  Help

Print Page Leave to Appeal

Published in the October 2009 issue of Transportation Notes - View Article

Return to Main Menu ››

In the August edition of Transportation Notes we reported on the decision of a motions judge in the case of Universal Helicopters v. Rolls-Royce, a matter involving issues both of jurisdiction simpliciter and convenience of the forum. We complained, in that article, about the discretion of trial courts which, on the present state of the law, is all but unlimited. In the present case it appeared to us that the overriding consideration which led to a finding of jurisdiction was the economic plight of a small local company.

The first level decision, whether or not it ultimately stands, will in any event be considered on appeal. On October 13th the Court of Appeal for Newfoundland and Labrador granted leave to appeal the lower court’s decision on both issues.

In coming to the conclusion that leave should be granted, the Court of Appeal considered the major cases which have fuelled the debate: Moran v. Pyle, Morguard Investments v. De Savoye; Hunt v. T&N PLC; and Muscutt v. Courcelles. The Ontario Court of Appeal, in Muscutt set out a list of factors which should be considered in determining whether jurisdiction exists. The complaint we raised in our August article was to the effect that a trial court armed with this shopping list of factors is practically invited to come to any conclusion it wishes.

The issue of the application of the Muscutt factors has not previously been considered by the Court of Appeal of Newfoundland and Labrador but the upcoming appeal will give it the opportunity to do so. In granting leave to appeal Justice Cameron did not find that there is reason to doubt the correctness of the decision below. He based his decision to grant leave on his determination that the matter raises an issue of great interest and that it would be impractical to leave resolution of the issue until after trial. The appeal is to proceed expeditiously.

Rolls-Royce Corporation v. Universal
Helicopters Newfoundland Limited,
2009 NLCA 58 (Can LII)