Supreme Court of Canada to Hear Forum Non Conveniens Appeal
The Supreme Court of Canada has just granted leave to appeal in Teck Cominco Metals Ltd. v. Lombard General Insurance Company of Canada (also indexed as Lloyd’s Underwriters v. Cominco Ltd.), a decision of the British Columbia Court of Appeal (available here).
In British Columbia the insurance companies each sought a declaration that they did not have to defend or indemnify Teck Cominco in respect of environmental damage claims. Teck Cominco moved to stay those proceedings, primarily on the basis that related litigation was already underway in the State of Washington, USA. The motion was denied and that decision was upheld on appeal, such that the British Columbia proceedings could proceed.
It is unusual for the Supreme Court of Canada to agree to hear an appeal about the most appropriate forum for the resolution of a dispute. As is its practice, the court did not provide any reasons for its decision to grant leave. The court may be wanting to address the role of comity in stay motion cases where there has been a prior positive assertion of jurisdiction by a foreign court.
The U.S. Supreme Court recently denied review over what I presume is the U.S. portion of this case. The question raised to the Court was whether “American environmental laws . . . can be applied unilaterally to penalize the actions of a foreign company in a foreign country undertaken in accordance with that country’s laws.” Petition for Writ of Certiorari, Teck Cominco Metals, Ltd. v. Pakootas, No. 06-1188 (2007), cert denied, 549 US __ (2007). The Ninth Circuit answered that question in the affirmative, presumably giving rise to the Canadian indemnity action (?). The decision to deny cert. was noted here (with links to the breifs) at https://conflictoflaws.de/2007/recognition/may-2007-roundup-of-us-decisions/
A correction to the above comment. The Supreme Court of the United States did not, as originally posted, deny cert in the Teck Cominco Metals v. Pakootas case. They discussed the Petition at their June 4, 2007 conference but, taking no action at that time, invited the Solicitor General to file an Amicus Brief. That brief was filed on November 20, 2007, and the Petition will be reconsidered at the Court’s private conference on January 4, 2008. A link to the docket is available at http://www.supremecourtus.gov/docket/06-1188.htm.
We may soon have an extraordinary situation where two closely related cases involving different aspects of the same dispute will be heard concurrently before the Supreme Court of the United States and the Supreme Court of Canada.
The Supreme Court of the United States today denied the Petition for a Writ of Certiorari in the Teck Cominco Metals v. Pakootas case. A link to the Court’s order sheet is available at http://www.scotusblog.com/wp/wp-content/uploads/2008/01/orders-mon-010708.pdf.