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PRIL - Anti-suit Injunctions. UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited
In UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited (Ont CA, 2021) the Court of Appeal heard a stay pending appeal motion. The matters below were an 'anti-suit motion' by the plaintiff, with a cross-motion for a permanent stay on the underlying Ontario action by the defendant. The defendant (who won below) argued that Ontario courts lack jurisdiction due to forum non conveniens and forum selection clauses. This complex ruling sheds some light on the nature of an anti-suit injunction, as opposed to a stay:[34] .... Sopinka J. made clear in Amchem Products Incorporated v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897, at p. 913, that there is a “fundamental difference” between a domestic court issuing an anti-suit injunction, which in effect determines matters for a foreign court, and a domestic court staying a proceeding before itself. The former raises issues of international comity, but the latter does not. The inquiries into the suitability of forum therefore differ.
[35] Most notably, in determining whether to grant an anti-suit injunction, the inquiry is based on the foreign court’s perspective. The domestic judge considering whether to issue an anti-suit injunction is to ask whether, applying Ontario’s principles of forum non conveniens, the court where the action sought to be restrained was commenced could reasonably have concluded there was no alternative forum that was “clearly more appropriate”. If the answer is yes, the decision of the foreign court to assume jurisdiction should not be interfered with: Amchem, at pp. 931-32.
[36] By contrast, in determining whether a domestic action should be stayed, the domestic court must determine for itself whether there is another forum that is “clearly more appropriate [than the domestic court] for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute”. A stay is appropriate only if this is so: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at paras. 108-109.
[37] These inquiries can result in an anti-suit injunction being denied without the parallel domestic action being stayed, unlike the outcome arrived at by the motion judge. This will occur, for example, if both the domestic and foreign forums are equally appropriate. In such circumstances, a foreign court could reasonably conclude there is no alternative forum that is “clearly more appropriate”, thereby warranting denial of an anti-suit injunction. But a domestic court would not necessarily stay the parallel domestic action since the domestic court would be equally appropriate; in other words, the foreign forum would not be “clearly more appropriate”.
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