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Private International Law - Forum Non Conveniens
MORE CASES
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. Haaretz.com v. Goldhar
In Haaretz.com v. Goldhar (SCC, 2018) the Supreme Court of Canada split into several rulings, with three judges dissenting in the result. These extracts are from the largest (3 judge) faction in the majority, and they deal the venue issue in an internet defamation case - with the focus being on libel 'tourism' [plaintiffs 'shopping' a case for favourable law and logistics].
This extract deals with the forum non conveniens inquiry, that is whether the Canadian court should hear the case:D. Did the Motion Judge Err in Finding That Israel Is Not a Clearly More Appropriate Forum Than Ontario?
[46] Having established jurisdiction (pursuant to the jurisdiction simpliciter analysis), the motion judge properly considered the question of forum non conveniens. At the forum non conveniens stage, the burden is on the defendant to satisfy the motion judge that the alternative forum is “clearly more appropriate” by establishing that it would be fairer and more efficient to proceed in that forum:The use of the words “clearly” and “exceptionally” should be interpreted as an acknowledgment that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed. The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute. [Emphasis added.] (Van Breda, at para. 109)
[47] While the normal state of affairs favours exercising jurisdiction in the forum where it is properly assumed, this should never come at the cost of one party facing unfair or clearly inefficient proceedings. The purpose of forum non conveniens, as discussed above, is to temper any potential rigidity in the rules governing the assumption of jurisdiction and to “assure fairness to the parties and the efficient resolution of the dispute” (Van Breda, at para. 104). Where the evidence indicates that the alternative forum is in a better position to dispose fairly and efficiently of the litigation, the court should grant the stay (Van Breda, at para. 109). This is especially true in cases where the evidence raises doubt as to whether proceeding in the chosen forum will provide the defendant with a fair opportunity to present its case.
[48] In light of the purpose of forum non conveniens, I agree with Pepall J.A. that, “given the ease with which jurisdiction simpliciter may be established in a defamation case, in a motion for a stay, a motion judge must conduct a robust and carefully scrutinized review of the issue of forum non conveniens” (para. 132). It is true that defamation cases involve a particularly rigid application of the rules governing the assumption of jurisdiction. As discussed above, the establishment of a presumptive connecting factor is “virtually automatic” in Internet defamation cases (Pepall J.A., at para. 127). Where there is no “real and substantial connection” to the chosen forum, a proper analysis at the rebuttal stage will alleviate some of the consequences of the rigid application of the rules governing the assumption of jurisdiction. That being said, there are some other consequences to the rigid application of these rules that can only be addressed in the forum non conveniens analysis. For example, where a plaintiff enjoys a reputation in multiple forums, publication may allow jurisdiction to be properly assumed in all of them, without regard to how fair or efficient it may be to proceed in the chosen forum. This is to be expected as, again, “the factors that would justify a stay in the forum non conveniens analysis should not be worked into the jurisdiction simpliciter analysis” (Van Breda, at para. 56). As the rebuttal stage fails to address all the consequences of the “virtually automatic” presumption of jurisdiction in defamation actions, it is appropriate for motion judges to be particularly attuned to concerns about fairness and efficiency at the forum non conveniens stage in these types of cases. This should not be understood as imposing a different standard or burden for defamation cases.
[49] I acknowledge that a motion judge’s decision on a stay motion is entitled to deference:The application of forum non conveniens is an exercise of discretion reviewable in accordance with the principle of deference to discretionary decisions: an appeal court should intervene only if the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision (see Young v. Tyco International of Canada Ltd., at para. 27). (Banro, at para. 41)
As the forum non conveniens analysis is inherently factual in nature, courts of appeal should not normally interfere with a motion judge’s factual findings. That being said, there are limits to deference, as recognized in Banro. Where the motion judge has “erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision”, courts of appeal may intervene. . Airia Brands Inc. v Air Canada
In Airia Brands Inc. v. Air Canada (Ont CA, 2017) the Court of Appeal, reviewing the leading case on the issue, considers the factors involved in a court taking jurisdiction under the doctrine of forum non conveniens:[121] In Van Breda, at para. 110, Lebel J. set out a list of non-exhaustive factors to consider in the forum non conveniens analysis: the location of the parties and the witnesses; the cost of transferring the case to another jurisdiction or declining the stay; the impact of a transfer on the conduct of the litigation or on related or parallel proceedings; the possibility of conflicting judgments; problems related to recognition and enforcement of judgments; and the relative strength of the connection of the parties.
[122] The burden is on the respondents to show that another jurisdiction has a real and substantial connection to the claim and also the availability of a clearly more appropriate forum than Ontario: LaPointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30 (CanLII), [2016] 1 S.C.R. 851, at para. 52, and Van Breda at paras. 103-105. As stated in Van Breda at para. 104: “Forum non conveniens recognizes that there is a residual power to decline to exercise jurisdiction in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute.” Consistent with the need to identify a clearly more appropriate forum than Ontario, the principle of comity informs the application of forum non conveniens.
[123] The motion judge accepted the respondent airlines’ arguments that Ontario was forum non conveniens and suggested that AFCs pursue individual actions within their own jurisdictions. However, she failed to ask whether any jurisdiction was clearly more appropriate than Ontario. This was in error.
[124] I would note that, in concluding Ontario was not the appropriate forum for the AFCs’ claims, the motion judge relied extensively on this court’s decision in Kaynes v. BP, PLC, 2014 ONCA 580 (CanLII), 122 O.R. (3d) 162. In Kaynes, Sharpe J.A. held that the United States and United Kingdom were more appropriate forums than Ontario for a class proceeding involving a claim in misrepresentation arising out of share purchases, the bulk of which were made on foreign exchanges.
[125] An examination of the facts in Kaynes reveals why Kaynes is distinguishable from the present case. First, the appellant in Kaynes was able to point to specific alternative fora that were more appropriate than Ontario, which the respondents here have failed to do. Second, litigation had commenced in the U.S. with respect to the exact same claims that the representative plaintiff sought to litigate in Ontario, whereas the claims put forth in the present class proceeding, dealing with shipments from or to Canada, are not the subject of any other existing proceedings. Indeed, the representative plaintiffs seek to exclude those claims relating to shipments between Canada and countries with ongoing proceedings arising from the same alleged conspiracy. Third, the majority (over 99%) of the proposed class in Kaynes lacked a link to Canada, as they had purchased shares outside of Canada. In contrast, to be part of the class in the present proceeding, an AFC must have purchased air freight services from or to Canada. Lastly, the substantive claims in Kaynes rested in part on U.S. securities law, unlike the claims in the present case, which rest solely on Canadian law.
[126] I would also observe that in a subsequent decision of this court in Keynes v. BP, P.L.C., 2016 ONCA 601 (CanLII), 133 O.R. (3d) 29, the same panel decided that the stay that it had previously imposed on the Ontario action based on forum non conveniens was to be lifted. This was because it had become clear that the plaintiffs could not proceed with a claim in the proceedings in the United States as had previously been anticipated and the claim was now conceded to be governed by Ontario law. Another forum was not clearly more appropriate.
[127] In this case, there is no such forum. Furthermore, the evidence clearly demonstrates a robust connection between the parties and Ontario. All of the respondents carry on business in Ontario, as do at least two of the representative plaintiffs. To be part of the class, AFCs must have purchased air freight services from the respondents for shipments from or to Canada. Based on the respondents’ own evidence, the majority of these services were rendered for shipments from or to Ontario. Some of the events in furtherance of the conspiracy claim unfolded in part in Ontario. Litigation relating to these same claims has not been brought in another jurisdiction and if it is in the future the plaintiffs are excluded from the class. The evidence of the respondents disclosed a minimum of 11,000 customers in Ontario for shipping services that arguably were impacted by the conspiracy. . James Bay Resources Limited v. Mak Mera Nigeria Limited
In James Bay Resources Limited v. Mak Mera Nigeria Limited (Ont CA, 2015) the Court of Appeal commented on the element of comity (international co-operation) as it related to the determination of whether it was a suitable court to hear international litigation under the doctrine of forum non conveniens:[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. . Vahle v. Global Work & Travel Co.
In Vahle v. Global Work & Travel Co. (Ont CA, 2020) the Court of Appeal conducted an instructive 'Van Breda' forum non conveniens analysis in upholding the motion judge's order. The case involved damages occuring in Thailand, the defendant company based in BC, but the lawsuit being filed in Ontario:[5] The motion judge dismissed a motion to dismiss or stay the action based on lack of jurisdiction simpliciter and forum non conveniens.
[6] The motion judge applied the test from Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, considering the various presumptive connecting factors. Among other things, the motion judge found a presumptive connecting factor in the form of torts committed in Ontario. He concluded that the appellant had not rebutted the presumption of a “real and substantial connection” between the subject matter of the litigation and Ontario. After determining that Ontario had jurisdiction simpliciter, he concluded that the appellant had failed to establish that another forum was clearly more appropriate.
[7] On appeal, the appellant concedes that the motion judge summarized correctly the law relating to jurisdiction simpliciter and forum non conveniens. However, the appellant argues that the motion judge erred in his application of the relevant principles.
[8] We reject the appellant's arguments that the trial judge erred in relying on the torts of negligent misrepresentation and negligence having been committed in Ontario as presumptive connecting factors; in holding that the respondents met the “good arguable case” threshold; and in concluding that the appellant had not rebutted the presumption of a real and substantial connection between the subject matter of the litigation and Ontario.
[9] While acknowledging that the claims for negligent misrepresentation may require particulars, the motion judge found there was a good arguable case supporting a presumptive factor in respect of the claim for harm suffered arising from the appellant's alleged misrepresentations to the sisters in Ontario about the "Teach in Thailand" program. These included representations that the appellant would ensure the living, safety, security and emergency needs of the sisters. In addition, claims concerning the appellant's post-accident conduct in Ontario concerning contacting the sisters' parents could support a claim in negligence.
[10] We see no error in the motion judge's conclusion that the appellant failed to rebut the real and substantial connection created by the presumptive connecting factors established by a tort committed in Ontario. In order to rebut a presumptive connecting factor, a defendant must “establish facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them”: Van Breda, at para. 95. The motion judge noted the potential weakness of internet representations as a connecting factor. However, he pointed out that the appellant was well-aware that it was attracting Ontario clients through representations made in Ontario. He also considered the potential minimal role of a travel agent when this type of accident occurs in a foreign jurisdiction, but concluded that the allegations concerning the appellant were that it provided, and represented that it provided, a much more far-reaching service than that of a simple travel agent.
[11] We also see no error in the motion judge’s application of the “good arguable case” test. The appellant argues that the motion judge erred because (1) the facts pleaded by the respondents were not capable at law of constituting the cause of action pleaded (concerning the claims for negligent misrepresentation, the appellant says that the older sister acknowledged on cross-examination that all she was told in telephone calls with the appellant was that she “would be safe”, that this amounts to no more than a “forecast” that is not at law capable of being a misrepresentation and that the motion judge’s reliance on the appellant’s omission to advise the sisters about the requirement to ride motor scooters and the dangers associated with that activity is not actionable as a misrepresentation); and (2) on the evidence before the motion judge, any viable claims against the appellant that are connected to Ontario are not supported.
[12] We disagree. As the motion judge pointed out at para. 26 of his reasons, while there is an evidentiary burden on the plaintiff to substantiate the presumptive connecting factors, especially where there is insufficient particularity in the statement of claim with respect to the jurisdictional facts, “this does not mean that the motion judge is to assess the merits of the case, but he or she must at least be satisfied that there is a “good arguable” case supporting a presumptive factor” (emphasis added), taking account of both the allegations in the statement of claim and the evidence, where evidence is led .
[13] The requirement that there be a “good arguable case supporting a presumptive factor” is easily met in this case. The sisters were in Ontario when they responded to internet advertisements from Global. At least some of the misrepresentations relied on are alleged to have been made to them in Ontario, and before they left for Thailand. Further, the motion judge’s finding that there was evidence that may support the misrepresentations pleaded and that they occurred in Ontario is supported by the record. While the appellant contends that some (not all) of the alleged misconduct was that of a Thai company, XploreAsia and other entities for which it is not responsible, at para. 13 of his reasons, the motion judge noted that the appellant’s evidence in that regard was deficient. In any event, it is unnecessary on a jurisdiction motion for the court to determine whether all of the alleged misconduct was that of the appellant, as pleaded, or that all of the alleged misconduct is connected to Ontario: Van Breda, at para. 99. It is also unnecessary and inappropriate to treat a jurisdiction motion as a r. 21 motion or to weigh evidence going to the merits of the litigation. Rather, the questions on a jurisdiction motion are whether the statement of claim asserts the core elements of a cause of action known to law and appears capable of amendment to cure any pleadings deficiencies and whether the claimant has established a good arguable case that the cause of action is sufficiently connected to Ontario to found jurisdiction. As this court noted in Ontario (Attorney General) v. Rothmans Inc., 2013 ONCA 353, 115 O.R. (3d) 561, at para. 106, leave to appeal refused, [2013] S.C.C.A. No. 327:[O]n a jurisdiction motion, the motion judge is not required to subject the pleadings to the scrutiny applicable on a rule 21 motion. So long as a statement of claim advances the core elements of a cause of action known to law and appears capable of being amended to cure any pleadings deficiencies such that the claim will have at least some prospect of success, the issue for the motion judge is whether the claimant has established a good arguable case that the cause of action is sufficiently connected to Ontario to permit an Ontario court to assume jurisdiction. It is necessary for the purpose of a jurisdiction motion for the court to determine whether there is a “real and substantial connection” between Ontario and the claims, when considered as a whole.
[14] Finally, on our review of his reasons, the motion judge conducted a thorough forum non conveniens analysis and considered all the relevant factors. Given the nature of the claims the respondents are advancing, in particular, negligent misrepresentation and negligence in Ontario, we see no basis on which to interfere with his conclusion. It is not for us to reweigh his assessment of the relevant factors.
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