Posts

Quebec Court Stays Palestinian Claim Against West Bank Builders

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.

Consultation Paper on Jurisdiction

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

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.

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

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.