Forum Non Conveniens, In a Nutshell

In Teck Cominco Metals Ltd v Lloyd’s Underwriters, 2009 SCC 11, the Supreme Court of Canada (“SCC”) considered whether, in situations where proceedings on the same matter are commenced in both Canada and a foreign jurisdiction, the Canadian proceeding should be stayed once the foreign court asserts jurisdiction over the matter. TheCourt.ca staff writer Julian Ho has already commented on the case. In today’s brief post, I’d like to draw attention to an interesting statement by McLachlin C.J. that may be useful to civil litigators.

Writing unanimously for the Court, McLachlin C.J. found that section 11 of the British Columbia Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c 28 [CJPTA], is “a complete codification of the common law test for forum non conveniens.” Section 11 of the CJPTA provides:

11. (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including

(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,

(b) the law to be applied to issues in the proceeding,

(c) the desirability of avoiding multiplicity of legal proceedings,

(d) the desirability of avoiding conflicting decisions in different courts,

(e) the enforcement of an eventual judgment, and

(f) the fair and efficient working of the Canadian legal system as a whole.

According to McLachlin C.J.:

Section 11 is meant to codify the doctrine of forum non conveniens, which was most recently confirmed by the Supreme Court of Canada in Amchem Products Inc. v. British Columbia, [1993] 1 S.C.R. 897. The language of subsection 11(1) is taken from Amchem and the earlier cases on which it was based. The factors listed in subsection 11(2) as relevant to the court’s discretion are all factors that have been expressly or implicitly considered by courts in the past.

Currently, only British Columbia, Nova Scotia, and Saskatchewan have enacted a Court Jurisdiction and Proceedings Transfer Act with the same statutory language found above. However, the SCC’s recognition of CJPTA s. 11 as a complete elucidation of the forum non conveniens doctrine means that courts in other provinces may also look to section 11 for guidance in determining the appropriate forum for a proceeding.

Section 11 of the CJPTA may be a helpful little nutshell for litigators since it more succinctly encapsulates forum non conveniens than Amchem Products Incorporated v British Columbia (Workers’ Compensation Board), [1993] 1 SCR 897 [Amchem]. Amchem is the leading SCC pronouncement on the doctrine, but it provides no explicit analytical framework. Section 11 of the CJPTA, by contrast, does just that.