#4991 - Amchem V. British Columbia - Conflict of Laws BCL

Amchem v. British Columbia (Canada)

Facts

The individual appellants consist of 194 persons who have suffered injury which they claim is due to exposure to asbestos or who are dependents of deceased persons affected by asbestos. In July of 1988, nine of the individual appellants commenced an action in the Texas District Court, Harrison County, Texas, seeking damages from the respondent asbestos companies. Eventually, the number of individual plaintiffs swelled to 194 in number. In all but 40 of these claims, the Workers' Compensation Board of British Columbia ("the Board") has a subrogated interest, by virtue of having paid compensation in the form of disability or death benefits to workers whose health was adversely affected by exposure to asbestos, and hence is dominus litis. Any damages recovered beyond the Board's interest are to be paid to the claimants. The appellant, Cassiar Mining Corporation (hereinafter "Cassiar") is a British Columbia corporation which has mined asbestos in that province. It was named a defendant in the action in British Columbia by the respondent asbestos companies although no injunction was sought against it. It is alleged that in any actions in British Columbia by the appellants, the respondent asbestos companies would seek contribution and indemnity from Cassiar.

The respondents are all companies involved in the manufacture, sale or supply of asbestos and asbestos products. None of the respondents has any connection with the Province of British Columbia.

The appellants allege that the respondent asbestos companies, with the possible exception of T & N and Carey Canada Inc., engaged in the following tortious conduct in the United States: making decisions pertaining to the manufacture of various asbestos-containing products; failing to provide adequate warnings and instructions for the use, application and removal of asbestos-containing products; failing to notify workers and others likely to be exposed of the dangers of asbestos exposure known to the asbestos companies; and conspiring to suppress knowledge of those dangers.

In November, 1989, the asbestos companies brought applications in the Supreme Court of British Columbia seeking anti-suit injunctions against the appellants, in order to prevent the continuation of the Texas actions.

Holding

Test for anti-suit injunctions in Canada

In my view, the principles outlined in SNI should be the foundation for the test applied in our courts. These principles should be applied having due regard for the Canadian approach to private international law. This approach is exemplified by the judgment of this Court in Morguard, supra, in which La Forest J. stressed the role of comity and the need to adjust its content in light of the changing world order.

Proceedings pending before foreign forum and application made before foreign forum first: first, it is useful to discuss some preliminary aspects of procedure with respect to anti-suit injunctions. As a general rule, the domestic court should not entertain an application for an injunction if there is no foreign proceeding pending. While quia timet injunctions are granted by the courts, that is done only if the applicant establishes that some threatened action by the defendant will constitute an actionable civil wrong. In general, an injunction is a remedy ancillary to a cause of action. See Case Comment by Elizabeth R. Edinger (1992), 71 Can. Bar Rev. 117, at p. 127. In this respect the anti-suit injunction is unique in that the applicant does not have to establish that the assumption of jurisdiction by the foreign court will amount to an actionable wrong. Moreover, although the application is heard summarily and based on affidavit evidence, the order results in a permanent injunction which ordinarily is granted only after trial. In order to resort to this special remedy consonant with the principles of comity, it is preferable that the decision of the foreign court not be pre-empted until a proceeding has been launched in that court and the applicant for an injunction in the domestic court has sought from the foreign court a stay or other termination of the foreign proceedings and failed.

Proceedings in domestic forum or potential proceedings in domestic forum: If the foreign court stays or dismisses the action there, the problem is solved. If not, the domestic court must proceed to entertain the application for an injunction but only if it is alleged to be the most appropriate forum and is potentially an appropriate forum. In any case in which an action has been commenced in the domestic forum, it can be expected that the domestic forum is being put forward as an appropriate forum by the plaintiff. In resisting a stay, the plaintiff will also contend that there is no other forum which is clearly more appropriate and that, therefore, the defendant has not complied with the test which I have outlined above. If no action has been commenced in the domestic forum, it has no juridical basis for entertaining an application for an injunction unless it is contended by the applicant that the action should have been commenced in the domestic forum as the more appropriate place of trial and it is potentially an appropriate forum.

Reviewing the decision of the foreign forum: The first step in applying the SNI analysis is to determine whether the domestic forum is the natural forum, that is the forum that on the basis of relevant factors has the closest connection with the action and the parties. I would modify this slightly to conform with the test relating to forum non conveniens. Under this test the court must determine whether there is another forum that is clearly more appropriate. The result of this change in stay applications is that where there is no one forum that is the most appropriate, the domestic forum wins out by default and refuses a stay, provided it is an appropriate forum. In this step of the analysis, the domestic court as a matter of comity must take cognizance of the fact that the foreign court has assumed jurisdiction. If, applying the principles relating to forum non conveniens outlined above, the foreign court could reasonably have concluded that there was no alternative forum that was clearly more appropriate, the domestic court should respect that decision and the application should be dismissed. When there is a genuine disagreement between the courts of our country and another, the courts of this country should not arrogate to themselves the decision for both jurisdictions. In most cases it will appear from the decision of the foreign court whether it acted on principles similar to those that obtain here, but, if not, then the domestic court must consider whether the result is consistent with those principles.

Personal or Juridical advantage: When will it be unjust to deprive the plaintiff in the foreign proceeding of some personal or juridical advantage that is available in that forum? I have already stated that the importance of the loss of advantage cannot be assessed in isolation. The loss of juridical or other advantage must be considered in the context of the other factors. The appropriate inquiry is whether it is unjust to deprive the party seeking to litigate in the foreign jurisdiction of a judicial or other advantage, having regard to the extent that the party and the facts are connected to that forum based on the factors which I have already discussed. A party can have no reasonable expectation of advantages available in a jurisdiction with which the party and the subject matter of the litigation has little or no connection. Any loss of advantage to the foreign plaintiff must be weighed as against the loss of advantage, if any, to the defendant in the foreign jurisdiction if the action is tried there rather than in the domestic forum. I pointed out in my discussion of the test for determining the forum non conveniens that loss of juridical advantage is one of the factors and it will have been considered in step one. It will also be considered in the second step to determine whether, apart from its influence on the choice of the most appropriate forum, an injustice...