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Courts - Jurisdiction - Forum Non Conveniens

James Bay Resources Limited v. Mak Mera Nigeria Limited (Ont CA, 2015)

In this case the Court of Appeal commented on the element of comity as it related to the determination of whether it was a suitable court under the doctrine of forum non conveniens to hear international litigation:
[11] The appellants argue that the motion judge erred in law in failing to specifically consider comity in his analysis, relying on the 1993 decision of the Supreme Court of Canada in Amchem Products Inc. v. British Columbia (Workers’ Compensation Board). That case dealt with anti-suit injunctions and is factually dissimilar to this case. Since Amchem the Supreme Court of Canada has released its decision in Van Breda v. Village Resorts, 2012 SCC 17 (CanLII), [2012] 1 S.C.R. 572 which has over-taken the prior jurisprudence dealing with jurisdiction and forum conveniens issues. At para. 74 of Van Breda the court had this to say in relation to comity:
The goal of the modern conflicts system is to facilitate exchanges and communications between people in different jurisdictions that have different legal systems. In this sense it rests on the principle of comity. But comity itself is a very flexible concept. It cannot be understood as a set of well-defined rules, but rather as an attitude of respect for and deference to other states and, in the Canadian context, respect for and deference to other provinces and their courts (citations omitted) Comity cannot subsist in private international law without order, which requires a degree of stability and predictability in the development and application of the rules governing international or interprovincial relationships. Fairness and justice are necessary characteristics of a legal system, but they cannot be divorced from the requirements of predictability and stability which assure order in the conflicts system. In the words of La Forest J. in Morguard, “what must underlie a modern system of private international law are principles of order and fairness, principles that ensure security of transactions with justice”…
[12] Comity is not a stand-alone factor. It is part and parcel of the forum non conveniens assessment in a given case. In Teck Cominco Metals Ltd. v. Lloyd’s Underwriters et al., 2009 SCC 11 (CanLII), [2009] 1 S.C.R. 321 (which decision is quoted in Van Breda) the Chief Justice says at para 21:
The first argument is that s.11 of the [Court Jurisdiction and Proceedings Transfer Act (CJPTA)] does not apply where a foreign court has asserted jurisdiction. I cannot agree. The CJPTA creates a comprehensive regime that applies to all cases where stay of proceedings is sought on the grounds that the action should be pursued in a different jurisdiction (forum non conveniens). It requires that in every case, including cases where a foreign judge has asserted jurisdiction in parallel proceedings, all relevant factors listed in s. 11 be considered in order to determine if a stay of proceedings is warranted. This includes the desirability of avoiding a multiplicity of legal proceedings. But the prior assertion of jurisdiction by a foreign court does not oust the s. 11 inquiry.
And further at para 23:
Teck submits that the usual multi-factored test under s. 11 of the CJPTA must give way to a “comity- Based” test when a foreign court positively asserts jurisdiction. To the extent this argument implies that the usual test does not give due comity to foreign courts, it must be rejected. Section 11 is itself a comity-based approach.
[13] While the court in Teck was dealing with a British Columbia case and in that province a statute – the CJTPA – is intended to codify the determination of jurisdictional issues, a review of s.11 of the CJPTA reveals that it is very much a codification of the factors set out by LeBel J. in Van Breda that a court should take into consideration when it considers the issue of forum non-conveniens.

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