Tag Archive for: stay of proceedings

Tourism and Jurisdiction to take Centre Stage in Supreme Court of Canada

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On March 21, 22 and 25, 2011 the Supreme Court of Canada will hear appeals in four private international law cases.  Each is a case in which the Ontario court has held that it has jurisdiction to hear the dispute and that the proceedings should not be stayed in favour of another forum. 

Two of the cases – Van Breda (information here) and Charron (information here) – involve Ontarians who were killed or severely injured while on holiday in Cuba.  They now seek to sue various foreign defendants in Ontario.  These cases involve tourists in the traditional sense of the word.  Two of the cases – Banro (information here) and Black (information here) – involve claims for defamation over the internet and damage to reputation in Ontario.  There is some allegation that these cases involve what has become known as “libel tourism”, especially in England and in the United States.

Several parties have already been granted leave to appear as intervenors and others are seeking such leave.  The decisions in these four cases could be very important for the Canadian law on jurisdiction.

The Supreme Court of Canada now posts PDFs of the written submissions of litigants as they are received, so those wanting more details about the cases should click on the “factums” button for each case.

Italian Forum on the Brussels I Review Proposal (2): Lis Pendens and Related Actions

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Following our previous post on the forum on the Brussels I review currently hosted by the website of the Italian Society of International Law (SIDI-ISIL), another comment has been added, on the amendments proposed by the Commission in respect of lis pendens and related actions. The contribution is authored by Fabrizio Marongiu Buonaiuti (University of Rome “La Sapienza”), who has recently published an extensive monograph on the regime of lis pendens and related actions in Italian law, in the European regulations and in other international instruments (Litispendenza e connessione internazionale. Strumenti di coordinamento tra giurisdizioni statali in materia civile, Napoli, 2008):

Quebec Court Stays Palestinian Claim Against West Bank Builders

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Things have certainly been quiet on the Canadian front over the past few months.  Ending the lull, in a decision filled with different conflict of laws issues, the Quebec Superior Court held, in Bil’In Village Council and Yassin v. Green Park International Inc. (available here), that Israel is the most appropriate forum for the dispute and therefore it stayed the proceedings in Quebec.

The plaintiffs, resident in the occupied West Bank, sued two corporations incorporated in Quebec for their involvement in building housing for Israelis in the West Bank.  The plaintiffs alleged violation of several international law principles.

The reasons address several interesting issues: 1. whether the defendants are protected by state immunity as agents of Israel [no], 2. whether decisions of the High Court of Justice in Israel in which the plaintiffs participated were recognizable in Quebec [yes], 3. whether these judgments statisfied the test for res judicata [no], 4. whether the plaintiffs had the necessary legal interest required under Quebec law to bring the proceedings [yes for one, no for the other], 5. whether the cause of action had no reasonable hope of succeeding [no], 6. whether the court should stay the proceedings [yes].

On the appropriate forum issue, the factual connections massively pointed away from Quebec.  The defendants were incorporated there, but largely for tax purposes – they did no business there – and that was the only connection to Quebec.  A key issue was whether the issues raised in the proceedings could be fairly resolved by an Israeli court, but the court found the expert evidence on this point favoured the defendants, not the plaintiffs.  This may be the most controversial aspect of the decision.

The decision also contains lengthy analysis of the applicable law and some comments on the absence of proof of foreign law.

It is not common for Canadian courts to mention, as a factor in the forum non conveniens analysis, the state of access to the local courts for local plaintiffs (the docket-crowding issue American courts do consider).  In this case, however, this factor is noted by the court in its reasons for staying the proceedings.

Consultation Paper on Jurisdiction

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The Law Commission of Ontario has released a consultation paper written by Professor Janet Walker (Osgoode Hall Law School, York University).  The paper (available here) proposes that Ontario’s current law on the taking and retaining of jurisdiction in civil matters is in need of reform.  It offers a proposed statute which would reform the law in this area.  The proposals have some common elements with the Uniform Law Conference of Canada’s model statute, the Court Jurisdiction and Proceedings Transfer Act (available here), but also some important differences.

The Law Commission welcomes comments on the paper, and the process for commenting is explained in the paper.  Beyond this, those generally interested in how countries resolve issues of jurisdiction in civil matters should find the points raised in the paper of interest.

To date three Canadian provinces have moved away from the traditional approach, which is based on a combination of common law and rules of civil procedure, and have brought into force the Court Jurisdiction and Proceedings Transfer Act (British Columbia, Saskatchewan and Nova Scotia).  Some other provinces have enacted the statute but not yet brought it into force, and some other provinces are considering adopting it.

Parallel Class Actions in Canada

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Canadian provincial courts continue to analyze how to manage class actions that include class members from other provinces.  While Canada is a federal country, it is acceptable for the court in a province to certify a class that includes members from other provinces.  A difficulty arises if two provinces are each asked to certify a multijurisdictional class in respect of the same underlying claim.

Currently there are class actions against Merck Frosst in both Ontario and Saskatchewan in respect of Vioxx.  In each of these provinces, the class action regime is “opt-out”, so that the class as defined catches all described members without any specific action on the part of a particular member.  Merck moved to stay the Ontario action on the basis that it should not be subject to two multijurisdictional class actions that involve substantially the same plaintiffs and issues.  In Mignacca v. Merck Frosst Canada Ltd. (an as-yet unreported decision of the Ontario Divisional Court, dated Feb. 13, 2009) the court refused to stay the Ontario action.

The court refused to adopt an approach that would defer to the court that first certified the class action: “a rule of swiftest to the finish line taking all encourages tactics that may well be contrary to the interests of justice” (para. 47).  The court noted that in other cases parallel class actions involving jurisdictional overlap had been resolved through the cooperation of counsel and guidance from the court. 

An unusual element of this case was the Ontario court’s concern about the lawyer representing the plaintiff class in the Saskatchewan proceedings.  It noted that he had five disciplinary violations from 1972 to 2006.  This strengthened the court’s desire to have the Ontario proceedings continue.

Supreme Court of Canada Addresses Role of Parallel Proceedings in Stay Applications

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Canada’s highest court has delivered its judgment in Teck Cominco Metals Ltd. v. Lloyd’s Underwriters (available here).  The decision is quite brief and upholds the decision of both courts below, leaving some to wonder why leave to appeal was granted.

Teck has mining and smelting operations in British Columbia.  In 2004 it was sued in Washington State for environmental property damage caused by the discharge of waste material into the Columbia River, which flows from Teck’s Canadian operations into the United States.  Teck notified its insurers, looking to them to defend the claim, but they refused.

Teck therefore sued the insurers in Washington State to establish its entitlement under the insurance policies.  The insurers sued Teck in British Columbia to establish their lack of responsibility under the same policies.  So the issue became where the coverage issue would be resolved.

Stay applications were brought in both coverage actions.  The application failed in the United States.  It also failed in the courts of British Columbia, but those decisions were appealed to the Supreme Court of Canada.

Teck wanted Canada’s highest court to take a different approach to applications for a stay in cases where a foreign court has already positively asserted jurisdiction.  This position was framed in a couple of different ways, but its essence was that the parallel proceedings should be an overriding and determinative factor in the analysis.  The court rejected that position, confirming that parallel proceedings are only one factor among many to be considered.

The court’s decision is under s. 11 of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28.  However, the court confirms that s. 11 is a codification of the common law doctrine of forum non conveniens, and so the reasoning should apply equally in provinces which have not adopted a jurisdiction statute (though it would have been helpful for the court to have expressly made this clear).

Most of the decision is unobjectionable and clear.  One point to consider, however, is the court’s reference (in para. 3o) to a distinction between interprovincial cases and international cases.  This raises the possibility that different considerations could arise as between sister provinces.  A refusal to stay proceedings in one province might be treated as determinative of the issue in another, in part because of the possibility of appeal to the Supreme Court of Canada and its binding effect on all provinces, and in part if the other province were required to recognize the admittedly interlocutory decision on the stay application.  Both of these are debatable issues, and the orthodoxy would suggest that parallel proceedings in a sister province remain just one factor in the analysis.  More guidance from the court on this question would have been welcome.