Forum Non Conveniens and the CJPTA: A Complete Codification or Not?

In Canada Life Assurance Company v Holidair Insurance Services Ltd, 2011 SKCA 85 (CanLII), the Court of Appeal for Saskatchewan granted leave to Canada Life to appeal an order by the Queen’s Bench Chambers judge dismissing its application for an order that the Saskatchewan Court decline jurisdiction.  Holidair initially applied for an order pursuant to The Arbitration Act, 1992, S.S. 1992, c. A-24.1 directing the arbitration proceed and further directing the two agreed-upon arbitrators to choose a third arbitrator with an agreement between the parties.

Canada Life moved under s. 10 of The Court Jurisdiction and Proceedings Transfer Act, S.S. 1997, c. C-41 (“CJPTA”) before the Court of Queen’s Bench requesting an order declining the exercise of any territorial competence in the arbitration proceedings on the ground that the courts of Ontario were a more appropriate jurisdiction.   S. 10 reads:

10(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 try the proceeding.

(2)  A court, in deciding the question of whether it or a court outside Saskatchewan is the more appropriate forum in which to try a proceeding, shall 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.

Lane, J.A. writes,

[10]  Canada Life argues the Chambers judge, in his consideration of each of the factors set out in s. 10, failed to give an overall consideration as to the effect of the application of each of the factors and ought to have determined the closest connection to the proceedings between the parties.  It says the doctrine of forum conveniens has not been done away with by the introduction of this legislation and is still one of the factors which may be considered as the legislation contemplates the possibility of circumstances other than those delineated in subsection 2.  Here the parties mutually agreed the arbitration would take place in Ontario.  There is simply no connection to Saskatchewan except for the applicable law.  The Chambers judge erred in principle by failing to properly consider the argument there is a possibility of conflicting decisions if the arbitration proceeds in Ontario and disputes are to be resolved in Saskatchewan courts.

[11]  It argues there are threshold issues which must be decided and which ought to be dealt with in the jurisdiction where the arbitration will take place. The threshold issues include: the receiver’s alleged lack of legal status or authority to pursue the claims commenced against Canada Life; whether the proceedings are time-barred; and whether there is a right to cross-examine on the material filed and obtain evidence with respect to the applications.  Canada Life argues these issues will have to be addressed by a court prior to Holidair being in a position to restart or recommence the arbitration proceedings.

[12]  As stated above, it argues the Chambers judge confined his review to the factors set out in s. 10 and failed to recognize the legislation recognizes there may be factors beyond those set out in s. 10(2) including the doctrine of forum conveniens.  Further, Canada Life contends the Chambers judge failed to give adequate weight to the agreement between the parties that the arbitration would take place in Ontario. [emphasis added]

Justice Lane concludes,

[16]  I am satisfied the application for leave to appeal should be allowed.  I am persuaded Canada Life’s argument that an interpretation of s. 10 which will allow for a consideration of factors other than those listed in s. 10 ought to be heard by the Court.  I am further persuaded the factor set out in s. 10(2)(c) was not fully canvassed before the Chambers judge as Holidair made no argument on this issue.  The concession before me by Holidair that the threshold issues could be dealt with in Ontario on the face of it seems to raise the possibility of a multiplicity of legal proceedings.  Further, although the Chambers judge dealt with the issue of the British Columbia action, the concession, in my view, means there is a possibility of three jurisdictions being involved with a higher possibility of a multiplicity of legal proceedings.  If this factor had been developed in argument below, it may well have led to a different conclusion regarding the possibility of conflicting decisions.  Canada Life, therefore, has satisfied the test for granting of leave to appeal.

[17]  Leave to appeal is therefore granted.  The issue of costs should be left to the Court. [emphasis added]

This decision is perplexing.

The forum non conveniens doctrine does continue to exist. However, the Saskatchewan Court of Appeal’s view that the “interpretation of s. 10 which will allow for a consideration of factors other than those listed in s. 10″ conflicts with the Supreme Court of Canada’s decision in Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, 2009 SCC 11, [2009] 1 SCR 321  where Chief Justice McLachlin, writing about section 11 of the CJPTA (the equivalent to s.10 of the Saskatchewan CJPTA above), held as follows:

[21] The first argument is that s. 11 of the 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 a stay of proceedings is sought on the ground 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 the 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 multiplicity of legal proceedings. But the prior assertion of jurisdiction by a foreign court does not oust the s. 11 inquiry.

[22] Section 11 of the CJPTA was intended to codify the forum non conveniens test, not to supplement it. The CJPTA is the product of the Uniform Law Conference of Canada. In its introductory comments, the Conference identified the main purposes of the proposed Act, which included bringing “Canadian jurisdictional rules into line with the principles laid down by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (S.C.C.), [1990] 3 S.C.R. 1077, and Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (S.C.C.), [1993] 1 S.C.R. 897” (Uniform Law Conference of Canada — Commercial Law Strategy (loose-leaf), at p. 3). Further, the drafters of the model Act confirmed that s. 11 of the CJPTA was intended to codify the common law forum non conveniens principles in “comments to section 11”:

11.1 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). 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. [p. 11]

Section 11 of the CJPTA thus constitutes a complete codification of the common law test for forum non conveniens. It admits of no exceptions. [emphasis added]

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