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Amchem Products Incorporated v. British Columbia (Workers' Compensation Board), [1993] 1 S.C.R. 897

 

Workers' Compensation Board and others                                      Appellants

 

v.

 

Amchem Products Incorporated and others                                     Respondents

 

and

 

Workers' Compensation Board and others                                      Appellants

 

v.

 

T & N plc                     Respondent

 

and

 

Workers' Compensation Board and others                                      Appellants

 

v.

 

The Flintkote Company                                                                     Respondent

 

Indexed as:  Amchem Products Incorporated v. British Columbia (Workers' Compensation Board)

 

File No.:  22256.

 

1992:  May 25; 1993:  March 25.

 

Present:  La Forest, Sopinka, Gonthier, Cory and McLachlin JJ.

 

on appeal from the court of appeal for british columbia

 

                   Courts ‑‑ Appropriate forum ‑‑ Action commenced in U.S. courts ‑‑ Plaintiffs largely resident in Canada ‑‑ Most of corporate defendants with some connection with state where action brought ‑‑ Anti‑suit injunction sought in Canadian courts to prevent action in U.S. courts ‑‑ Principles governing the determination of appropriate forum and governing comity between courts ‑‑ Whether or not an injunction appropriate.

 

                   Prerogative writs ‑‑ Injunctions ‑‑ Appropriate forum for bringing action ‑‑ Action commenced in U.S. courts ‑‑ Plaintiffs largely resident in Canada ‑‑ Most of corporate defendants with some connection with state where action brought ‑‑ Anti‑suit injunction sought in Canadian courts to prevent action in U.S. courts ‑‑ Whether or not an injunction appropriate.

 

                   Conflict of laws ‑‑ Courts ‑‑ Action commenced in U.S. courts ‑‑ Plaintiffs largely resident in Canada ‑‑ Most of corporate defendants with some connection with state where action brought ‑‑ Anti‑suit injunction sought in Canadian courts to prevent action in U.S. courts ‑‑ Principles governing the determination of appropriate forum and governing comity between courts ‑‑ Whether or not an injunction appropriate.

 

                   The individual appellants consist of 194 persons who have suffered injury claimed to be caused by exposure to asbestos or who are dependents of deceased persons affected by asbestos.  The action seeking damages from the respondent asbestos companies was brought in Texas in 1988.  In all but forty 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 litus.  Any damages recovered beyond the Board's interest is to be paid to the claimants.  Most of the claimants were residents of British Columbia when the injuries were sustained.

 

                   None of the respondents has any connection with British Columbia.  Most were incorporated and have their principal place of business and manufacture in the United States, although there is no concentration of them in any single state.  Although none was incorporated in Texas, most carry on business there in the form of asbestos manufacturing plants and some maintained their principal asbestos manufacturing facilities or corporate headquarters there at various times.  The appellants allege that the respondent asbestos companies ‑‑ with the possible exception of T & N and Carey Canada Inc. ‑‑ engaged in tortious conduct in the United States:  making decisions pertaining to the manufacture of various asbestos‑containing products, failing to warn adequately as to the dangers of asbestos products, and conspiring to suppress knowledge of those dangers.

 

                   The Texas court found jurisdiction and venue.  According to the respondents, this ruling was not appealed because, under Texas law, such a ruling on jurisdiction cannot be appealed until after trial of the action.  After the action was commenced in Texas, most of the  corporate defendants filed special appearances challenging jurisdiction and venue and seeking a stay of the action on the grounds that Texas was forum non conveniens.  The companies' latter motion was dismissed and all appeals from this decision were dismissed.

 

                   In November, 1989, the asbestos companies successfully applied in the Supreme Court of British Columbia for anti‑suit injunctions against the appellants, in order to prevent the continuation of the Texas actions.  The injunctions were upheld on appeal.  The Texas court in turn issued an "anti‑anti‑suit" injunction, with a limited period of currency, prohibiting the seeking of such injunctions in British Columbia.  At issue here is on what principles should a court exercise its discretion to grant an anti‑suit injunction and how these principles apply in this appeal.

 

                   Held:  The appeal should be allowed.

 

                   The courts have developed two forms of remedy to control the parties' choice of forum.  The first and more conventional device is a stay of proceedings.  It enables the court of the forum selected by the plaintiff (the domestic forum) to stay the action at the request of the defendant if persuaded that the case should be tried elsewhere.  The second is the anti‑suit injunction which may be granted by the domestic court at the request of a defendant, actual or potential, in a foreign suit.  With the stay, the domestic court determines for itself whether in the circumstances it should take jurisdiction whereas, with the injunction, it in effect determines the matter for the foreign court.  While the restraining order operates in personam on the plaintiff in the foreign suit and not on the foreign court itself, it has the latter effect and therefore raises serious issues of comity.  A court should entertain an application for an anti‑suit injunction only where a serious injustice will occur because of the failure of a foreign court to decline jurisdiction applying the forum non conveniens test.

 

                   The test for forum non conveniens is there must be some other forum more convenient and appropriate for the pursuit of the action and for securing the ends of justice.  There is no reason why the loss of juridical advantage in principle should be treated as a separate and distinct condition rather than being weighed with the other factors which are considered in identifying the appropriate forum.

 

                   The domestic court should not entertain an application for an injunction if there is no foreign proceeding pending.  An injunction is generally a remedy ancillary to a cause of action.  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.  Consonant with the principles of comity, the decision of the foreign court should 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.

 

                   If the foreign court stays or dismisses the action, 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.  Where 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.  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.

 

                   The first step in the analysis is to determine whether, in conformity with the forum non conveniens test, there is another forum that is clearly more appropriate than the domestic forum.  In stay applications, the result of this test is that where no one forum 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, 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.

 

                   The domestic court, where it concludes that the foreign court assumed jurisdiction on a basis inconsistent with principles relating to forum non conveniens and that the foreign court's conclusion could not reasonably have been reached had it applied those principles, must go then to the second step.

 

                   Loss of juridical advantage, a factor considered in step one,  must also be considered in step two to determine whether, apart from its influence on the choice of the most appropriate forum, an injustice would result if the plaintiff is allowed to proceed in the foreign jurisdiction.  The loss of a personal or juridical advantage is not necessarily the only potential cause of injustice in this context but it will be, by far, the most frequent.  Loss of personal advantage, however, might amount to an injustice.

 

                   The court will not generally grant an injunction if it will unjustly deprive the plaintiff of advantages in the foreign forum, having regard to the extent that the party and the facts are connected to it.  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.

 

                   The result of the above test will be that when a foreign court assumes jurisdiction on a basis that generally conforms to the Canadian rule of private international law for determining whether Canadian courts are the forum conveniens, that decision will be respected and a Canadian court will not purport to make the decision for the foreign court.  The policy of Canadian courts with respect to comity demands no less.  If, however, a foreign court assumes jurisdiction on a basis that is inconsistent with Canadian rules of private international law and an injustice results to a litigant or "would‑be" litigant in Canadian courts, then the assumption of jurisdiction is inequitable and the party invoking the foreign jurisdiction can be restrained.  The foreign court, not having, itself, observed the rules of comity, cannot expect its decision to be respected on the basis of comity.

 

                   The finding of sufficient contact with Texas was supported by the evidence and hence, the jurisdiction in Texas was asserted according to the Due Process Clause of the U.S. Constitution.  The application of this provision is consistent with Canada's rules of private international law relating to forum non conveniens.

 

                   The Texas court, when it granted motions for anti‑anti‑suit injunctions in British Columbia, did not attempt to defeat the proceedings in British Columbia and the injunction did not have this effect.  It was therefore wrong to visit the conduct of some of the claimants on the entire class so as to enjoin them from proceeding in Texas.  In the circumstances, this action on the part of the Texas court was not a demonstration of disrespect for the British Columbia proceedings so as to disentitle the decision of the Texas court to the ordinary respect which comity affords.  It had little if any relevance to the issue of injustice which is the second step of the analysis.

 

Cases Cited

 

                   ConsideredSNI Aérospatiale v. Lee Kui Jak, [1987] 3 All E.R. 510; Spiliada Maritime Corp. v. Cansulex Ltd., [1987] A.C. 460;  referred toHunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Dow Chemical Co. v. Alfaro, 786 S.W.2d 674 (1990), certiorari denied, 59 U.S.L.W. 3460 (1991); Castanho v. Brown & Root (U.K.) Ltd., [1981] A.C. 557; Antares Shipping Corp. v. The Ship "Capricorn", [1977] 2 S.C.R. 422; Bushby v. Munday (1821), 5 Madd. 297, 56 E.R. 908; Laker Airways v. Sabena, Belgian World Airlines, 731 F.2d 909 (1984); Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077; The Atlantic Star, [1973] 2 All E.R. 175; Rockware Glass Ltd. v. MacShannon, [1978] 2 W.L.R. 362; de Dampierre v. de Dampierre, [1987] 2 W.L.R. 1006; Voth v. Manildra Flour Mills Pty Ltd. (1990), 65 A.L.J.R. 83; Club Mediterranee NZ v. Wendell, [1989] 1 N.Z.L.R. 216; Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981); St. Pierre v. South American Stores (Gath & Chaves), Ltd., [1936] 1 K.B. 382; Avenue Properties Ltd. v. First City Dev. Corp. (1986), 7 B.C.L.R. (2d) 45; British Airways Board v. Laker Airways Ltd., [1985] A.C. 53; South Carolina Insurance Co. v. Assurantie Maatschappij "De Zeven Provincien" N.V., [1987] A.C. 24; Cole v. Cunningham, 133 U.S. 107 (1890);  Unterweser Reederei, GmbH v. M/S Bremen, 428 F.2d 888 (5th Cir. 1970); Gau Shan Co., Ltd. v. Bankers Trust Co., 956 F.2d 1349 (1992); National Mutual Holdings Pty. Ltd. v. Sentry Corp. (1989), 87 A.L.R. 539; Pioneer Concrete (Vic.) Pty. Ltd. v. Trade Practices Commission (1982), 152 C.L.R. 460; Canadian Home Assurance Co. v. Cooper (1986), 29 D.L.R. (4th) 419; Rowan Companies, Inc. v. DiPersio (1990), 69 D.L.R. (4th) 224; Allied‑Signal Inc. v. Dome Petroleum Ltd. (1988), 67 Alta. L.R. (2d) 259; Kornberg v. Kornberg (1990), 30 R.F.L. (3d) 238, leave to appeal refused [1991] 1 S.C.R. x; Aikmac Holdings Ltd. v. Loewen, [1989] 6 W.W.R. 759; Pennoyer v. Neff, 95 U.S. 714 (1877); International Shoe Co. v. Washington, 326 U.S. 310 (1945); Milliken v. Meyer, 311 U.S. 457 (1940); Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984).

 

Statutes and Regulations Cited

 

Civil Practice and Remedies Code, s. 71.031 (Vernon's Texas Codes Annotated.  St. Paul, Minn.:  West Publishing Co.).

 

Law and Equity Act, R.S.B.C. 1979, c. 224, s. 36.

 

U.S. Constitution, Fourteenth Amendment, s. 1.

 

Authors Cited

 

Black, Vaughan.  "The Standard for Issuing Antisuit Injunctions in Canada" (1991), 44 C.P.C. (2d) 30.

 

Dicey, A. V. and J. H. C. Morris, The Conflict of Laws, 11th ed.  London:  Stevens and Sons, 1987.

 

Edinger, Elizabeth R.  Case Comment (1992), 71 Can. Bar Rev. 117.

 

Hayes, Ellen L.  "Forum Non Conveniens in England, Australia and Japan:  The Allocation of Jurisdiction in Transnational Litigation" (1992), 26 U.B.C. Law Rev. 41.

 

Raushenbush, Richard W., "Antisuit Injunctions and International Comity" (1985), 71 Va. Law Rev. 1039.

 

                   APPEAL from a judgment of the British Columbia Court of Appeal (1990), 50 B.C.L.R. (2d) 218, 75 D.L.R. (4th) 1, [1991] 1 W.W.R. 243, 44 C.P.C. (2d) 1, dismissing an appeal from a judgment of Esson C.J.S.C. (1989), 42 B.C.L.R. (2d) 77, 65 D.L.R. (4th) 567, [1990] 2 W.W.R. 601, 38 C.P.C. (2d) 232.  Appeal allowed.

 

                   J.J. Camp, Q.C., Patrick G. Foy and J. Fiorante, for the appellants.

 

                   Bryan Williams, Q.C., and Terrance A. Kowalchuk, for the respondents Amchem Products Incorporated and others.

 

                   James A. Macaulay, Q.C., and Kenneth N. Affleck, for the respondent T & N plc.

 

//Sopinka J.//

 

                   The judgment of the Court was delivered by

 

                   Sopinka J. -- This is an appeal from the grant of an interlocutory injunction restraining tort proceedings in a foreign court.  The issue requiring determination in this case is whether the anti-suit injunction issued in British Columbia which seeks to prevent the appellants from pursuing their action against the respondents in Texas should be set aside.  The resolution of this issue requires an examination of our rules of private international law relating to forum non conveniens and anti-suit injunctions.

 

                   As noted by A. V. Dicey and J. H. C. Morris, The Conflict of Laws, vol. 1  (11th ed. 1987), at p. 391:

 

This topic has become of increasing modern importance as a result of a variety of factors including the greater ease of communication and travel; the tendency of courts in many countries to extend their jurisdiction over events and persons outside their territory; and a greater awareness of foreign laws and procedures, which in turn may lead to "forum-shopping."

 

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.  Most of the claimants are or were residents of the provinces of British Columbia at the time the injuries were sustained, although some of the claimants are residents of Alberta, Manitoba, New Brunswick and the American state of Washington.

 

                   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.  Most of the asbestos companies were incorporated and have their principal place of business and manufacture in the United States, although there is no concentration of them in any single state.  Although none of the respondents was incorporated in the State of Texas, most of them carry on business in that state in the form of asbestos manufacturing plants.  Certain of the respondents have maintained their principal asbestos manufacturing facilities (Garlock, Inc.) or corporate headquarters (National Gypsum Company and Flexitallic Gaskett Company) in Texas at various times.  The respondent, National Gypsum, maintains a principal place of business in Texas.  One respondent, Carey Canada Inc., is a Quebec company with its principal place of business in Quebec.  Carey Canada is a subsidiary of an American corporation.  T & N plc (hereinafter "T & N") is a company incorporated in the United Kingdom which carried on business in Texas through a licensee who had offices in Houston and San Antonio, Texas.

 

                   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.  This Court has recently held in a related asbestos case that the conspiracy action should not be struck out as disclosing no reasonable cause of action (Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959).

 

                   The appellants allege that exposure to asbestos occurred in various jurisdictions, including the United States, Canada (British Columbia, Alberta, Manitoba, Quebec and New Brunswick) and Europe.  The respondents, on the other hand, submit that virtually all of the alleged exposure occurred while the appellants were resident and working in British Columbia.  On December 19, 1988, Baxter J. of the Texas District Court found jurisdiction and venue in Harrison County, Texas, under {SS} 71.031 of the Texas Civil Practice and Remedies Code, on the basis that the asbestos companies had not discharged the onus of showing that they did not carry on business in Texas.  According to the respondents, this ruling was not appealed because, under Texas law, such a ruling on jurisdiction cannot be appealed until after trial of the action.

 

                   After the action was commenced in Texas, most of the 33 corporate defendants filed special appearances challenging jurisdiction and venue and seeking a stay of the action on the grounds that Texas was forum non conveniens.  Six of the defendants, however, including one of the respondents on this appeal (Owens-Corning Fiberglass Corporation), filed "general answers" which are seen in Texas law to concede in personam jurisdiction.  The claimants (appellants in this action) opposed the forum non conveniens motion in Texas on the ground that forum non conveniens had no application because the doctrine had been statutorily abolished in Texas (see:  Dow Chemical Co. v. Alfaro, 786 S.W.2d 674 (Tex. 1990), certiorari denied, 59 U.S.L.W. 3460 (1991)).  On July 14, 1989, Leggat J. of the Texas District Court dismissed without reasons the companies' motion to dismiss due to  forum non conveniens.  The District Court subsequently denied a motion to reconsider this decision and the asbestos companies petitioned the Texas Supreme Court for leave to file a writ of mandamus with respect to the forum non conveniens issue. This petition was overruled, and a further motion to reconsider that decision was denied by the Texas Supreme Court.  A scheduling order was made in September, 1989 setting a jury trial for December 10, 1989.

 

                   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.  The asbestos companies also brought a claim for abuse of process.  On November 10, 1989, an ex parte injunction was granted by Cowan J. restraining the continuation of the Texas proceedings.  On November 20, 1989, those claimants who were not residents of British Columbia, sought and obtained an injunction in Texas to prevent the respondents from obtaining similar injunctions against them in Canada.  This is referred to as an "anti-anti-suit" injunction.  It expired on December 8, 1989.

 

                   T & N brought separate proceedings in British Columbia because it is its position that the facts relating to it are different from the other respondents, in that T & N was sued in Texas as if it were an American company.  It had been linked to a Pennsylvania company with which it had licensing and other agreements for the sale of asbestos in the United States.  T & N states that a company by the name of Atlas had the exclusive right to distribute all of their products in Canada.  Hence, T & N submits, the claimants could not have been exposed to its products. 

 

                   The asbestos companies' applications were heard by Esson C.J.S.C. who granted the injunctions, on terms, including a requirement that the respondents attorn to the jurisdiction of the British Columbia courts should the appellants bring fresh actions in that province.  The asbestos companies' claim for abuse of process was struck out.   The appellants appealed to the Court of Appeal for British Columbia, which dismissed their appeals.  At the hearing of the appeal, the Flintkote Company pursued a cross-appeal for abuse of process.  The Court of Appeal upheld the striking of this claim and dismissed the cross-appeal.

 

                   On May 12, 1992, I granted a motion to adduce further evidence so that this Court would have before it a more complete record of the proceedings in the Texas courts, the connection of the respondents to that jurisdiction, and the proceedings that have taken place in the rest of Canada since the injunction was granted.

 

Judicial History

 

Supreme Court of British Columbia (1989), 42 B.C.L.R. (2d) 77

 

                   The asbestos companies claimed the following relief:

 

(a)  a declaration that British Columbia is the natural forum for the trial of the matters raised in the Texas action;

 

(b)  a declaration that the asbestos companies are not liable to the claimants in respect of any of the matters raised in the Texas action;

 

(c)  an injunction restraining the defendants in this action from taking any step in Texas to obtain an order enjoining the asbestos companies from seeking the relief claimed in this action;

 

(d)  an injunction restraining the present defendants from further prosecuting the Texas action; and,

 

(e)  a claim for damages for abuse of process.

 

                   Esson C.J.S.C. noted that the doctrine of forum non conveniens was not applicable to the Texas courts.  Describing the introduction of anti-suit injunctions to Canadian jurisprudence as relatively new, Esson C.J.S.C. then directed his attention to English jurisprudence for guidance.  In particular, he took Castanho v. Brown & Root (U.K.) Ltd., [1981] A.C. 557 (H.L.), and SNI Aérospatiale v. Lee Kui Jak, [1987] 3 All E.R. 510 (P.C.), (hereinafter "SNI") as "highly persuasive authority" because they dealt directly with anti-suit injunctions.  The principle Esson C.J.S.C. drew from these cases was that if the local court decides that its jurisdiction is the natural forum for the adjudication of the dispute, and that the plaintiff is acting oppressively through the foreign proceedings, the local court can enjoin the plaintiffs from proceeding with the foreign action, if doing so would be in the interests of justice.

 

                   In applying these principles to the case at bar, Esson C.J.S.C. held that, while Texas is not a "wholly inappropriate forum", British Columbia was "a more natural" one.  This being insufficient to decide the issue, he went on to balance the "juridical convenience" to the appellants in continuing the Texas proceedings against the disadvantage to the respondents.  In his view, the refusal of Texas to apply the doctrine of forum non conveniens was a factor weighing in favour of a finding of oppression.  Although the rules of comity would dictate that British Columbia defer to the decision of the Texas court on the question of whether proceeding in that jurisdiction would be oppressive, since there was no consideration of this issue on the merits, Esson C.J.S.C. concluded that no deference should be paid to the Texas court.  Esson C.J.S.C. considered the fact that the Texas court had enjoined the respondents from seeking an anti-suit injunction against the non-British Columbia claimants by way of an anti-anti-suit injunction to be a further factor indicating oppression.

 

Court of Appeal (1990), 50 B.C.L.R. (2d) 218

 

                   Hollinrake J.A., writing for McEachern C.J.B.C. and Taggart J.A., stated that Esson C.J.S.C. did not err in principle or otherwise such that the appeal should be successful.  Hollinrake J.A., however, did hold different views on the issue of natural forum and the significance of the want of the doctrine of forum non conveniens.

 

                   Firstly, Hollinrake J.A. stated that although most of the case law involved an application for a stay of domestic proceedings, and not an anti-suit injunction restraining foreign proceedings, the principles applicable to a stay must be considered as a guide when determining the principles applicable to an application for an anti-suit injunction.  He decided that the principles enunciated in SNI should be adopted.  Hollinrake J.A. commented that the absence of the doctrine of forum non conveniens played a significant role in his conclusion that British Columbia is "the one and only natural forum for this action".

 

                   Hollinrake J.A. was of the view that comity was of little importance because the injunction is not directed to the foreign court but only to the appellants who were British Columbia residents.  The fact that the appellants had not commenced concurrent actions in British Columbia was not of sufficient importance, because if it were of importance, any claimant could avoid an anti-suit injunction merely by not commencing an action in the jurisdiction where the anti-suit injunction is sought.

 

                   McEachern C.J.B.C. agreed with Hollinrake J.A., but wrote concurring reasons for judgment adding that all courts should ensure that their citizens do not bring proceedings other than in the natural forum, that is, the one with the closest connection to the litigation.

 

The Issue

 

                   The issue to be determined is on what principles should a court exercise its discretion to grant an anti-suit injunction and how these principles apply in this appeal.

 

Choosing the Forum in Modern Litigation

 

                   This Court has not considered this question since its decision in Antares Shipping Corp. v. The Ship "Capricorn", [1977] 2 S.C.R. 422.  Meanwhile, the business of litigation, like commerce itself, has become increasingly international.  With the increase of free trade and the rapid growth of multi-national corporations it has become more difficult to identify one clearly appropriate forum for this type of litigation.  The defendant may not be identified with only one jurisdiction.  Moreover, there are frequently multiple defendants carrying on business in a number of jurisdictions and distributing their products or services world wide.  As well, the plaintiffs may be a large class residing in different jurisdictions.  It is often difficult to pinpoint the place where the transaction giving rise to the action took place.  Frequently, there is no single forum that is clearly the most convenient or appropriate for the trial of the action but rather several which are equally suitable alternatives.  In some jurisdictions, novel principles requiring joinder of all who have participated in a field of commercial activity have been developed for determining how liability should be apportioned among defendants.  In this climate, courts have had to become more tolerant of the systems of other countries.  The parochial attitude exemplified by Bushby v. Munday (1821), 5 Madd. 297, 56 E.R. 908, at p. 308 and p. 913, that "[t]he substantial ends of justice would require that this Court should pursue its own better means of determining both the law and the fact of the case" is no longer appropriate.

 

                   This does not mean, however, that "forum shopping" is now to be encouraged.  The choice of the appropriate forum is still to be made on the basis of factors designed to ensure, if possible, that the action is tried in the jurisdiction that has the closest connection with the action and the parties and not to secure a juridical advantage to one of the litigants at the expense of others in a jurisdiction that is otherwise inappropriate.  I recognize that there will be cases in which the best that can be achieved is to select an appropriate forum.  Often there is no one forum that is clearly more appropriate than others.

 

                   The courts have developed two forms of remedy to control the choice of forum by the parties.  The first and more conventional device is a stay of proceedings.  This enables the court of the forum selected by the plaintiff (the domestic forum) to stay the action at the request of the defendant if persuaded that the case should be tried elsewhere.  The second is the anti-suit injunction, a more aggressive remedy, which may be granted by the domestic court at the request of a defendant or defendants, actual or potential, in a foreign suit.  In the usual situation the plaintiff in the domestic court moves to restrain the defendant or defendants from launching or continuing a proceeding in the courts of another jurisdiction. Occasionally, as in this case, the defendants in a foreign jurisdiction who allege that the plaintiff in that jurisdiction has selected an inappropriate forum seek an injunction from the courts of the alleged appropriate forum, in which no proceeding is pending, to restrain continuation of the foreign proceedings.  While the restraining order operates in personam on the plaintiff in the foreign suit and not on the foreign court itself, it has the latter effect and therefore raises serious issues of comity.

 

                   Although both the remedy of a stay and an injunction have as their main objectives the selection of an appropriate forum for the trial of the action, there is a fundamental difference between them which is crucial to the development of the principles which should govern each.  In the case of the stay the domestic court determines for itself whether in the circumstances it should take jurisdiction whereas, in the case of the injunction, it in effect determines the matter for the foreign court.  Any doubts that a foreign court will not regard this as a breach of comity are dispelled by reading the reaction of Wilkey J. of the District of Columbia Circuit of the United States Federal Court of Appeal in Laker Airways v. Sabena, Belgian World Airlines, 731 F.2d 909 (1984), in which the British courts restrained Laker from continuing an anti-trust suit in United States courts against British airlines.  In assessing the role of comity in the formulation of the principles which should inform the exercise of this power, I adopt the definition of comity approved by La Forest J. in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, at p. 1096:

 

"Comity" in the legal sense is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.  But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws . . . .

 

                   It has been suggested that by reason of comity, anti-suit injunctions should either never be granted or severely restricted to those cases in which it is necessary to protect the jurisdiction of the court issuing the injunction or prevent evasion of an important public policy of the domestic forum.  See Richard W. Raushenbush, "Antisuit Injunctions and International Comity" (1985), 71 Va. Law Rev. 1039, and Laker Airlines, supra.  A case can be made for this position.  In a world where comity was universally respected and the courts of countries which are the potential fora for litigation applied consistent principles with respect to the stay of proceedings, anti-suit injunctions would not be necessary.  A court which qualified as the appropriate forum for the action would not find it necessary to enjoin similar proceedings in a foreign jurisdiction because it could count on the foreign court's staying those proceedings.  In some cases, both jurisdictions would refuse to decline jurisdiction as, for example, where there is no one forum that is clearly more appropriate than another.  The consequences would not be disastrous.  If the parties chose to litigate in both places rather than settle on one jurisdiction, there would be parallel proceedings, but since it is unlikely that they could be tried concurrently, the judgment of the first court to resolve the matter would no doubt be accepted as binding by the other jurisdiction in most cases.

 

                   While the above scenario is one we should strive to attain, it has not yet been achieved.  Courts of other jurisdictions do occasionally accept jurisdiction over cases that do not satisfy the basic requirements of the forum non conveniens test.  Comity is not universally respected.  In some cases a serious injustice will be occasioned as a result of the failure of a foreign court to decline jurisdiction.  It is only in such circumstances that a court should entertain an application for an anti-suit injunction.  This then indicates the general tenor of the principles that underlie the granting of this form of relief.  In order to arrive at more specific criteria, it is necessary to consider when a foreign court has departed from our own test of forum non conveniens to such an extent as to justify our courts in refusing to respect the assumption of jurisdiction by the foreign court and in what circumstances such assumption amounts to a serious injustice.  The former requires an examination of the current state of the law relating to the stay of proceedings on the ground of forum non conveniens, while the latter, the law with respect to injunctions and specifically anti-suit injunctions.

 

Forum Non Conveniens

 

                   The law of Canada and other common law countries on this subject evolved from the law of England which was most recently restated by the House of Lords in Spiliada Maritime Corp. v. Cansulex Ltd., [1987] A.C. 460.  In setting out the principles which should guide a British court, Lord Goff, who delivered the main judgment, stated at p. 477 that "on a subject where comity is of importance, it appears that there will be a broad consensus among major common law jurisdictions".  The English approach has gone through several stages of evolution tending to a broader acceptance of the legitimacy of the claim of other jurisdictions to try actions that have connections to England as well as to such other jurisdictions.  Other common law jurisdictions have either accepted the principles in Spiliada, or an earlier version of them.

 

                   Earlier English cases declined to apply the principle of forum non conveniens, which was a Scottish principle, preferring a rule which required a party who had been served within the jurisdiction to establish:  (1) that the continuation of the action would cause an injustice to him or her because it would be oppressive or vexatious or constitute an abuse of the process, and (2) that stay would not cause an injustice to the plaintiff.  The foundation for this rule was not balance of convenience for the trial of the action but rather abuse of the rights of the parties.  A different test applied with respect to cases in which service outside the jurisdiction was necessary.  In such a case an order for service ex juris was required and the plaintiff had to show that England was the appropriate forum and that the rule authorizing such service was otherwise complied with.  In The Atlantic Star, [1973] 2 All E.R. 175, the House of Lords was urged to adopt the principle of forum non conveniens from the Scottish law and to discontinue the test which required proof that the action was oppressive or vexatious as a prerequisite to a stay.  The House of Lords declined to adopt the Scottish doctrine but opined that since the words "oppressive and vexatious" were flexible (indeed they had never been satisfactorily defined), liberalization of the English rule could be achieved in the application of those terms.  In Rockware Glass Ltd. v. MacShannon, [1978] 2 W.L.R. 362, those words were discarded in favour of a more liberal and flexible test which required the defendant to establish:  (1) that there is another forum to which the defendant is amenable in which justice can be done at substantially less inconvenience or expense, and (2) that the stay did not deprive the plaintiff of a legitimate personal or juridical advantage if the action continued in the domestic court.  This was substantially the same as the Scottish rule of forum non conveniens.

 

                   In Spiliada, supra, the House of Lords restated the rule and elaborated on its application.  In particular, the court dealt with its application in what it considered two different circumstances.  In the "as of right" cases in which the defendant was served in the jurisdiction, the burden of proof that a stay should be granted was on the defendant who was required to show that there is another forum which is clearly more appropriate for the trial of the action.  This so-called "natural forum" is the one with which the action has the most real and substantial connection.  If this first condition is established, a stay will be granted unless the plaintiff establishes special circumstances by reason of which justice requires that the trial take place in England.  Mere loss of a juridical advantage will not amount to an injustice if the court is satisfied that substantial justice will be done in the appropriate forum.  In cases in which service is effected ex juris, the burden is on the plaintiff throughout and is the obverse of that applicable in cases as of right; that is, the plaintiff must show that England is clearly the appropriate forum.  Lord Goff provided some guidance with respect to the relevant factors that determine the appropriate forum.  While not intending to provide an exhaustive list, His Lordship referred to the principal factors in his reasons at p. 478:

 

So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction (as to which see Crédit Chimique v. James Scott Engineering Group Ltd., 1982 S.L.T. 131), and the places where the parties respectively reside or carry on business.

 

                   These principles were reaffirmed in de Dampierre v. de Dampierre, [1987] 2 W.L.R. 1006 (H.L.).  The case provides an interesting illustration of the application of the second branch of the rule.  The petitioner wife resisted a stay of her divorce proceedings in England on the ground that in France, where her husband had also commenced proceedings, she would be deprived of support if her conduct was found to be the exclusive cause of the break-up of the marriage.  Having found that the husband had satisfied the first condition establishing France as the appropriate forum, the loss of this juridical advantage was considered not sufficient to work an injustice in that substantial justice would still be done under the matrimonial regime obtaining in France.

 

                   In Australia, the High Court, while not adopting all of the wording of Spiliada, has enunciated principles that the court acknowledged would likely yield the same results in the majority of cases.  See Voth v. Manildra Flour Mills Pty Ltd.  (1990), 65 A.L.J.R. 83, at p. 90.  The test for a stay is whether the forum selected by the plaintiff is clearly inappropriate rather than whether there is another forum that is clearly more appropriate.  The same test applies in "as of right" and "service ex juris" cases.  In New Zealand the applicable test is the Spiliada test which was adopted in Club Mediterranee NZ v. Wendell, [1989] 1 N.Z.L.R. 216 (C.A.)  The United States Federal Courts apply similar principles in actions in those courts.  In Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), the Supreme Court of the United States approved of the decision of the District Court which dismissed an action brought in California by the administratrix of the estates of Scottish citizens involved in an air crash in Scotland against the American manufacturers of the aircraft.  The test applied by the District Court judge was whether the relevant factors clearly pointed to a trial in the alternative jurisdiction.  The test was applied on the basis of a presumption in favour of the plaintiff's choice of forum, the impact of which was lessened when the home forum was not selected.

 

                   The current state of the law in Canada is summed up adequately by Ellen L. Hayes in "Forum Non Conveniens in England, Australia and Japan:  The Allocation of Jurisdiction in Transnational Litigation" (1992), 26 U.B.C. Law Rev. 41, at pp. 42-43:

 

                   The status of the doctrine of forum non conveniens in Canada is unclear.  In general terms the Canadian courts have looked to English authorities when considering forum non conveniens issues.  Their specific approach, however, is not consistent.  The most recent cases from the Western provinces refer to the current English test, but at the same time resist adopting a comprehensive test or rule which would result in an "overly legalistic approach."  The Ontario courts, on the other hand, have fallen behind the English courts' development of the doctrine and continue to apply a test which has now been replaced by the House of Lords.  There is confusion in many of the cases as to whether the test is different when the defendant is served within the jurisdiction rather than ex juris, where the burden of proof lies and the weight to be given personal or juridical advantages to the plaintiff of proceeding in the home jurisdiction.

 

The only recent decision of this Court on the subject is Antares, supra, which, while an admiralty case in the Federal Court, discusses the general principles relating to forum non conveniens.  At p. 448, Ritchie J., for the majority, stated the test that should be applied when the court is asked to stay an action on this ground:

 

                   In my view the overriding consideration which must guide the Court in exercising its discretion by refusing to grant such an application as this must, however, be the existence of some other forum more convenient and appropriate for the pursuit of the action and for securing the ends of justice.

 

This case was decided before Spiliada and MacShannon.  It is significant that there is no mention in the statement of general principles of any requirement that the domestic proceeding be shown to be oppressive or vexatious.  There is no specific discussion of the second condition of the English rule but it is clear from the judgment that a principal factor in the determination that there was no alternative forum more convenient than Canada was the fact that it was the only jurisdiction in which the plaintiff could obtain an effective judgment.  The ship, which was the subject of the suit, had been arrested in Quebec and the bond posted to obtain its release was security for enforcement of any judgment obtained in Canada.  No such security was available in the other jurisdictions which were potential appropriate fora for the action.  Accordingly, Canada was the most convenient forum for both "the pursuit of the action" and "for securing the ends of justice".

 

                   In my view there is no reason in principle why the loss of juridical advantage should be treated as a separate and distinct condition rather than being weighed with the other factors which are considered in identifying the appropriate forum. The existence of two conditions is based on the historical development of the rule in England which started with two branches at a time when oppression to the defendant and injustice to the plaintiff were the dual bases for granting or refusing a stay.  The law in England has evolved by reworking a passage from the reasons of Scott J. in St. Pierre v. South American Stores (Gath & Chaves), Ltd., [1936] 1 K.B. 382, which contained two conditions.  In its original formulation the second condition required the court to ensure that there was no injustice to the plaintiff in granting the stay.  No doubt this was because the oppression test concentrated largely on the effects on the defendant of being subjected to a trial in England.  When the first condition moved to an examination of all the factors that are designed to identify the natural forum, it seems to me that any juridical advantages to the plaintiff or defendant should have been considered one of the factors to be taken into account.  The weight to be given to juridical advantage is very much a function of the parties' connection to the particular jurisdiction in question. If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case to the jurisdiction, that is ordinarily condemned as "forum shopping".  On the other hand, a party whose case has a real and substantial connection with a forum has a legitimate claim to the advantages that that forum provides.  The legitimacy of this claim is based on a reasonable expectation that in the event of litigation arising out of the transaction in question, those advantages will be available.

 

                   Finally, I observe that Antares, supra, was a case in which leave to serve ex juris was required.  The Court did not, however, consider this an important matter in formulating the test.  It seems to me that whether it is a case for service out of the jurisdiction or the defendant is served in the jurisdiction, the issue remains:  is there a more appropriate jurisdiction based on the relevant factors.  If the defendant resides out of the jurisdiction this is a factor whether or not service is effected out of the jurisdiction.  Residence outside of the jurisdiction may be artificial.  It may have been arranged for tax or other reasons notwithstanding the defendant has a real and substantial connection with this country.  The special treatment which the English courts have accorded to ex juris cases appears to be based on the dictates of Ord. 11 of the English rules which imposes a heavy burden on the plaintiff to justify the assertion of jurisdiction over a foreigner.  In most provinces in Canada, leave to serve ex juris is no longer required except in special circumstances and this trend is one that is likely to spread to other provinces.  This phenomenon was considered by the High Court of Australia in Voth, supra, in reaching its conclusion that the test should be the same for service ex juris cases and others.  Whether the burden of proof should be on the plaintiff in ex juris cases will depend on the rule that permits service out of the jurisdiction.  If it requires that service out of the jurisdiction be justified by the plaintiff, whether on an application for an order or in defending service ex juris where no order is required, then the rule must govern.  The burden of proof should not play a significant role in these matters as it only applies in cases in which the judge cannot come to a determinate decision on the basis of the material presented by the parties.  While the standard of proof remains that applicable in civil cases, I agree with the English authorities that the existence of a more appropriate forum must be clearly established to displace the forum selected by the plaintiff.  This was the position adopted by McLachlin J.A. (as she then was) in Avenue Properties Ltd. v. First City Dev. Corp. (1986), 7 B.C.L.R. (2d) 45.  She emphasized that this had particular application where there were no parallel foreign proceedings pending.

 

                   This review establishes that the law in common law jurisdictions is, as observed by Lord Goff in Spiliada, remarkably uniform.  While there are differences in the language used, each jurisdiction applies principles designed to identify the most appropriate or appropriate forum for the litigation based on  factors which connect the litigation and the parties to the competing fora.  A review of the law of Japan by Ellen L. Hayes in the study to which I refer above (supra, at p. 63) led her to conclude that similar principles are applied there.  Regard for the principles of international comity to which I have referred suggests that in considering an anti-suit injunction the fact that a foreign court has assumed jurisdiction in circumstances which are consistent with the application of the above principles is an important factor militating against granting an injunction.

 

Anti-Suit Injunctions

 

                   England

 

                   The English courts have exercised jurisdiction to restrain proceedings in a foreign court and to stay domestic actions since 1821.  Leach V.-C. in Bushby v. Munday, supra, at p. 307 and p. 913, stated the rule as follows:

 

Where parties Defendants are resident in England, and brought by subp{oe}na here, this Court has full authority to act upon them personally with respect to the subject of the suit, as the ends of justice require; and with that view, to order them to take, or to omit to take, any steps and proceedings in any other Court of Justice, whether in this country, or in a foreign country.

 

The sentiment expressed at that time was that the relief sought, whether an injunction or a stay, operated in personam and was not intended to interfere with the other court.  Thus viewed, the question to be determined was whether the ends of justice required the issuance of an injunction or a stay.  In deciding that an injunction should be granted in Bushby v. Munday, supra, the Vice-Chancellor made findings that the English Court was a more convenient jurisdiction; and, that the proceedings in Scotland, due to procedural law, were less likely to elicit the truth.  Leach V.-C. concluded (at p. 308 and p. 913) that the English court should pursue its superior means for determining both law and fact.

 

                   The same test evolved for anti-suit injunctions and stays, based on the judgment of Scott L.J. in St. Pierre v. South American Stores (Gath & Chaves), Ltd., supra.  Where these requirements were met, the court would exercise its discretion in granting the stay or enjoining the foreign proceedings.  The principles governing the issuance of a stay and an anti-suit injunction remained identical until the House of Lords' decision in The Atlantic Star, supra, when the English jurisprudence regarding stays of domestic proceedings underwent the first of the modifications to which I have referred.  In The Atlantic Star, the House of Lords held that the words "oppressive" and "vexatious" should be interpreted liberally.  After the decision in The Atlantic Star, it was unclear whether the principles governing the issuance of an anti-suit injunction remained the same or whether they evolved along with the principles governing a stay of domestic proceedings.  The House of Lords directly considered this question in Castanho v. Brown and Root (U.K.) Ltd., supra, which involved an application for an anti-suit injunction.  Lord Scarman pronounced, at p. 574, that "[t]he principle is the same whether the remedy sought is a stay of English proceedings or a restraint upon foreign proceedings".  Lord Scarman approved the reformulation of the principles as set out by Lord Diplock in The Atlantic Star, supra, and concluded, at p. 575, that:

 

. . . to justify the grant of an injunction the defendants must show:  (a) that the English court is a forum to whose jurisdiction they are amenable in which justice can be done at substantially less inconvenience and expense, and (b) the injunction must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the American jurisdiction.  [Emphasis in original.]

 

Lord Scarman emphasized that the "critical equation" in an application for a stay or an anti-suit injunction was between the advantage to the plaintiff and the disadvantage to the defendants.  For the purposes of this determination, the prospect of higher damages in the foreign jurisdiction was a legitimate juridical advantage for a plaintiff.  The House of Lords applied the law as set out in Castanho, supra, in two succeeding cases involving applications to enjoin foreign proceedings (British Airways Board v. Laker Airways Ltd., [1985] A.C. 53, and South Carolina Insurance Co. v. Assurantie Maatschappij "De Zeven Provincien" N.V., [1987] A.C. 24).

 

                   This test, in so far as it regarded anti-suit injunctions, did not withstand the scrutiny of the Judicial Committee of the Privy Council.  In 1987, the Privy Council overturned the liberalized principles that the House of Lords enunciated.  The definitive statement of the law was pronounced in SNI, supra:  an anti-suit injunction will not be issued by an English court unless it is shown that the foreign proceedings will be oppressive or vexatious.  It was made clear that the traditional principles as summarized in St. Pierre v. South American Stores (Gath & Chaves), Ltd., supra, were to govern applications to restrain foreign proceedings.  Thus, the liberalized principles formulated in Spiliada, supra, in the context of an application for a stay of domestic proceedings were not to apply to anti-suit injunctions because to do so would be inconsistent with the principles of comity and would disregard the fundamental requirement that an injunction will only be available where it is required to address the ends of justice.

 

                   In coming to his conclusion on the law in SNI, Lord Goff considered the long history of English law as well as American and Scottish authorities.  He stated, at p. 519, that the following basic principles were beyond dispute:

 

First, the jurisdiction is to be exercised when the `ends of justice' require it. . . . Second, where the court decides to grant an injunction restraining proceedings in a foreign court, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed. . . . Third, it follows that an injunction will only be issued restraining a party who is amenable to the jurisdiction of the court against whom an injunction will be an effective remedy. . . . Fourth, it has been emphasised on many occasions that, since such an order indirectly affects the foreign court, the jurisdiction is one which must be exercised with caution. . . .  [Cites omitted.]

 

In considering the above principles, Lord Goff set out the following test (SNI, supra, at p. 522):

 

In the opinion of their Lordships, in a case such as the present where a remedy for a particular wrong is available both in the English (or, as here, the Brunei) court and in a foreign court, the English (or Brunei) court will, generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexatious or oppressive.  This presupposes that, as a general rule, the English or Brunei court must conclude that it provides the natural forum for the trial of the action, and further, since the court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so.  So, as a general rule, the court will not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him.

 

This analysis represents the current test for issuance of an anti-suit injunction in England.

 

                   The United States of America

 

                   Although American courts have exercised the equitable power to restrain parties subject to their jurisdiction from litigating in another forum (see Cole v. Cunningham, 133 U.S. 107 (1890)), most American jurisdictions allow parallel foreign proceedings for in personam actions.  Anti-suit injunctions are used only when "necessary to protect the jurisdiction of the enjoining court, or to prevent the litigant's evasion of the important public policies of the forum" (Laker Airways v. Sabena, Belgian World Airlines, supra, at p. 927).   As in the case of other jurisdictions, the power to issue such injunctive relief must be exercised with extreme caution because, although in theory the order operates in personam, an anti-suit injunction "effectively restrict[s] the foreign court's ability to exercise its jurisdiction" (Laker Airways, supra, at p. 927).

 

                   In American jurisprudence there are no precise rules governing the issuance of anti-suit injunctions; rather, the equitable circumstances are examined to determine whether the injunction is required to prevent an irreparable miscarriage of justice.  A court is to be guided by two tenets.  Firstly, the fundamental corollary to concurrent jurisdiction must be respected:  parallel proceedings in concurrent in personam actions are allowed to proceed simultaneously.  Second, impedance of the foreign jurisdiction is to be avoided. (See Laker Airways, supra, at pp. 926-27.)

 

                   As noted by one author, when faced with foreign courts of concurrent jurisdiction, not all American courts abide by the rule favouring parallel proceedings.  Richard W. Raushenbush, "Antisuit Injunctions and International Comity", supra, at pp. 1049-50, describes two distinct approaches which have developed.  Under the "liberal" approach to anti-suit injunctions, a court will be willing to grant an injunction where the proceedings are duplicative in nature, and they "(1) frustrate a policy of the forum issuing the injunction; (2) [are] vexatious or oppressive; (3) threaten the issuing court's in rem or quasi in rem jurisdiction; or (4) . . . prejudice other equitable considerations" (per Unterweser Reederei, GmbH v. M/S Bremen,  428 F.2d 888 (5th Cir. 1970), at p. 890).  The "conservative" approach, as exemplified by Wilkey J. in Laker Airways, supra, advances the view that issuing anti-suit injunctions to prevent duplicative litigation is inconsistent with the rule permitting parallel proceedings in concurrent in personam actions.  In the application of the "conservative" approach (at p. 927), anti-suit injunctions are only deployed when it becomes "necessary to protect the jurisdiction of the enjoining court, or to prevent the litigant's evasion of the important public policies of the forum".  Often an applicant is additionally required to establish the conventional requirements for issuance of an injunction:  a likelihood of success on the merits, a risk of irreparable injury, a lack of significant harm to the defendant, and a public interest in issuing an injunction.  (See Gau Shan Co., Ltd. v. Bankers Trust Co., 956 F.2d 1349 (6th Cir. 1992).)

 

                   As observed by Lord Goff in SNI, there is no suggestion in American jurisprudence that applications for stays of proceedings and anti-suit injunctions are governed by the same principles.

 

                   Australia

 

                   The Federal Court - General Division has discussed the English and American authorities regarding anti-suit injunctions:  Gummow J. in National Mutual Holdings Pty. Ltd. v. Sentry Corp. (1989), 87 A.L.R. 539, at p. 563, concluded that:

 

The conduct of foreign proceedings which have a tendency to interfere with the due process of the domestic court may, in the circumstances of a particular case, generate the necessary equity to enjoin those foreign proceedings as vexatious or oppressive. . . .

 

He added three observations.  First, "[i]n Australia, there is the further consideration that where a court has begun to exercise the judicial power of the Commonwealth in relation to a particular matter, it has the exclusive right to exercise or control the exercise of the functions which form part of that power or are incidental to it:  cf Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 C.L.R. 460 at 471-3, 474. . . ."  Secondly, "[i]t is also to be asked whether effectual relief can be obtained in the courts of the foreign country . . .: cf White and Tudor's Leading Cases in Equity [9th ed., vol. 1], pp 635-6".  And lastly, "[a] relevant consideration is the existence of substantial reasons of benefit for the plaintiff in bringing the foreign proceedings: [SNI] (at 893-4)".

 

                   The High Court of Australia has not specifically considered the principles upon which an anti-suit injunction will be granted.

 

                   Canada

 

                   Canadian jurisprudence is not widely developed on this subject matter.  Even the early cases, however, admonished that the power to restrain foreign proceedings should be exercised with great caution and that the strict purpose of such injunctions was to prevent the abuse of the courts by vexatious actions.  There is no decision of this Court on the point.

 

                   Two recent Nova Scotia decisions dealt with anti-suit injunctions.  Canadian Home Assurance Co. v. Cooper (1986), 29 D.L.R. (4th) 419 (N.S.S.C. App. Div.), predated the English judgment of SNI.  In that case, an injunction was granted upon MacKeigan J.A.'s findings that the foreign action involving the same parties was of no value to the respondents since, if its resolution was the same as the domestic action, it would not add to the domestic judgment, and, if the judgment were not the same, it would not be recognized in the domestic jurisdiction because of what would be considered to be a jurisdictional error.  Without discussion of the governing principles, the injunction was granted.   In the later Nova Scotia case of Rowan Companies, Inc. v. DiPersio (1990), 69 D.L.R. (4th) 224, which was decided after SNI, an anti-suit injunction was refused by the Court of Appeal.  Jones J.A., delivering the judgment for the court, stated that the balance of convenience favoured the respondent.  The factors he relied on were that the action was brought in the lex loci delicti which was the appropriate forum and that the applicant carried on business in the foreign jurisdiction where, presumably, some of the witnesses resided.  He found, at p. 240, that the action could not be termed "frivolous or vexatious".

 

                   In the recent Alberta Queen's Bench decision in Allied-Signal Inc. v. Dome Petroleum Ltd. (1988), 67 Alta. L.R. (2d) 259, Medhurst J. purported to apply the English principles enunciated in SNI in an action for an anti-suit injunction.  He stated, at p. 266:

 

                   After considering all of the submissions that have been made, it is my view that these applications before me should be decided on the basis of which forum is more suitable for the ends of justice in determining the issues in dispute.  This includes a consideration of the tripartite test for obtaining interlocutory injunctions in other proceedings.

 

Medhurst J. concluded that on the basis of the forum non conveniens test the injunction should be granted.  He added that the injunction might also be justified on two further grounds:  (1) the foreign action is oppressive due to the risks of inconsistent findings and subsequent actions for contribution and indemnity, and (2) the tripartite test for granting interim injunctions which includes consideration of the public interest and private interests of the parties was satisfied.

 

                   Kornberg v. Kornberg (1990), 30 R.F.L. (3d) 238 (Man. C.A.) (leave to appeal refused, [1991] 1 S.C.R. x), is a case which applied the SNI principles.  The majority of the Court of Appeal recognized that the principles applicable to an anti-suit injunction were not the same as those applicable to a stay of domestic proceedings.  Philp J.A., writing for the majority, held that an anti-suit injunction should not be granted unless continuing the foreign proceedings would lead to injustice to the other party or the pursuit of the foreign proceedings was vexatious and oppressive.   This decision was in contrast to the Manitoba Court of Appeal decision in Aikmac Holdings Ltd. v. Loewen, [1989] 6 W.W.R. 759, which applied the English approach in Castanho, supra, which was overruled in 1987 by the Privy Council in SNI.

 

                   No consistent approach appears to emerge from these cases other than recognition of the principle that great caution should be exercised when invoking the power to enjoin foreign litigation.

 

The Test

 

                   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.  I now turn to the formulation of the test in light of the foregoing.

 

                   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.

 

                   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.

 

                   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.

 

                   In a case in which the domestic court concludes that the foreign court assumed jurisdiction on a basis that is inconsistent with principles relating to forum non conveniens and that the foreign court's conclusion could not reasonably have been reached had it applied those principles, it must go then to the second step of the SNI test.  I prefer the initial formulation of that step without reference to the terms "oppressive or vexatious".  At p. 522, Lord Goff states: 

 

This presupposes that, as a general rule, the English or Brunei court must conclude that it provides the natural forum for the trial of the action, and further, since the court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so.  So, as a general rule, the court will not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him.  [Emphasis added.]

 

That case was decided on the basis of the injustice to SNI by reason of the loss of juridical advantages in Brunei but not available to it in Texas.  The characterization of this loss as oppressive added nothing to the analysis.  This is especially so since neither "oppressive" nor "vexatious" was satisfactorily defined in SNI nor, from my reading of the cases, anywhere else.  If flexibility is the desired objective, it is achieved by the use of the term "injustice" which, in addition, is more in keeping with the language of the statutes which provide for injunctive relief.  For example, the British Columbia Law and Equity Act, R.S.B.C. 1979, c. 224, s. 36, authorizes an injunction when "it appears to the court to be just or convenient."

 

                   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 would result if the plaintiff is allowed to proceed in the foreign jurisdiction.  The loss of a personal or juridical advantage is not necessarily the only potential cause of injustice in this context but it will be, by far, the most frequent.  Indeed most of the authorities involve loss of juridical advantage rather than personal advantage.  Nonetheless, loss of personal advantage might amount to an injustice if, for example, an individual party is required to litigate in a distant forum with which he or she has no connection.  I prefer to leave other possible sources of injustice to be dealt with as they arise.

 

                   The result of the application of these principles is that when a foreign court assumes jurisdiction on a basis that generally conforms to our rule of private international law relating to the forum non conveniens, that decision will be respected and a Canadian court will not purport to make the decision for the foreign court.  The policy of our courts with respect to comity demands no less.  If, however, a foreign court assumes jurisdiction on a basis that is inconsistent with our rules of private international law and an injustice results to a litigant or "would-be" litigant in our courts, then the assumption of jurisdiction is inequitable and the party invoking the foreign jurisdiction can be restrained.  The foreign court, not having, itself, observed the rules of comity, cannot expect its decision to be respected on the basis of comity.

 

Application of Principles to this Appeal

 

                          I would allow the appeal on the ground that Esson C.J.S.C. (the trial judge) erred in his application of both branches of the rule relating to anti-suit injunctions which I have outlined above.  First, with respect to the choice of forum, the first step in the test, having concluded that the Texas court did not apply a forum non conveniens test, he failed to consider whether, notwithstanding that fact, the decision was consistent with applicable principles of private international law.  Second, although he was of the view that the alleged loss of juridical advantage had little substance, he decided that the Texas proceedings were oppressive.  In respect of both branches of the rule he gave undue weight to the absence of a forum non conveniens rule in Texas and to the anti-anti-suit injunction granted by the Texas court.

 

                   The trial judge found that Texas was not a "wholly inappropriate forum".   While he held that British Columbia was a more natural forum than Texas, he also held that the United States was a natural forum and that some state other than Texas was a more natural forum but did not specify which state that was.  Indeed, he stated that he would have difficulty in concluding that any particular state was the natural forum.  All of the asbestos companies had some connection with Texas and some had a substantial connection.  The conclusion is reinforced by reason of the position taken by the respondents in the proceedings before the trial judge that they were not contesting the assumption of jurisdiction over them by the Texas courts.  This could only be so if the respondents had a connection to Texas.  They had no connection to British Columbia.  The acts which were the foundation of the claim took place outside of British Columbia and in the United States.  The action had been commenced there and had progressed to the point that a trial date had been set.  In finding that both British Columbia and the United States were natural fora, the trial judge must have been of the opinion that an action in the appropriate state in the United States could be justified on the basis of forum non conveniens principles.  The term "natural forum" is by definition the forum that has the closest connection with the parties and the case.  The finding that both the United States and British Columbia were natural fora would suggest that one was not clearly more appropriate than the other.  It is not clear that any other state in the United States was clearly a more appropriate forum and since the case was presented on the basis that it was a contest between Texas and British Columbia, it was not relevant that some other state in the United States was more appropriate.   The selection of Texas by the plaintiffs could be justified on the basis that no other forum  was clearly more appropriate.  As pointed out by the trial judge, Texas might be the natural forum for some of the asbestos companies but not others but neither side was suggesting that the case be decided on an individual basis.  In these circumstances, if some weight is given to the choice of forum by the  plaintiff in the absence of related litigation pending elsewhere, the decision of the Texas court could be recognized having due regard for the principles of comity to which I have referred above.   It appears from the trial judge's reasons that he might have come to this conclusion "on the basis of the facts and submissions other than those relating to the decisions made in Texas" (emphasis added).  These decisions are respectively the decision as to the application of forum non conveniens principles in Texas law and the anti-anti-suit injunction.  These decisions in his view disentitled the Texas court to the respect that comity customarily affords.  On the basis of the test I have outlined above, this would be sufficient to allow the appeal and dismiss the application for an injunction.  In the alternative, however, had I come to the conclusion that the application for an injunction satisfied this part of the test, I would have concluded that it failed the second step of the analysis.

 

                   With respect to the second step of the test, I am of the view that the respondents failed to establish that continuation of the proceedings would deprive them of a legitimate juridical advantage of which it would be unjust to deprive them by proceeding in Texas.  The principal disadvantages to which reference was made were:  (1) the inability to claim over against the appellants Workers' Compensation Board and Cassiar, and, (2) the presence of other actions against some of the respondents brought in British Columbia by other claimants.  The trial judge found little substance in these complaints.  With respect to the inability to claim over against Workers' Compensation Board, it was based not on any legal impediment but on the inability to gather evidence against them if the action proceeded in Texas.  As for Cassiar, the trial judge found that the basis for a possible claim over very tenuous.  With respect to (2), he discounted the importance of this because, in light of the enormous scale of the asbestos litigation, there was nothing unusual about the existence of actions in several jurisdictions.  In my opinion the trial judge was right to minimize the gravity of these disadvantages.  Moreover, these did not represent a loss of advantages that the respondents could reasonably have expected to have, based on their previous connection to British Columbia.  As with the first step of the analysis, the trial judge found that the second step was satisfied not by reason of the loss of juridical or other advantages but because the Texas court, by failing to apply the forum non conveniens rule and by issuing the anti-anti-suit injunction, rendered the proceedings in Texas oppressive.

 

                   With due respect to the trial judge, the principle of comity to which I have referred does not require that the decision of the foreign court be based on the doctrine of forum non conveniens.  Many states in the United States and other countries do not apply that principle.  Indeed, until comparatively recent times, it was not applied in England.  Does this mean that a decision of the courts of one of these countries which, in the result, is consistent with the application of our rules would not be entitled to respect?  The response must be in the negative.  It is the result of the decision when measured against our principles that is important and not necessarily the reasoning that leads to that decision.  Moreover, while the Texas courts do not apply a forum non conveniens test as such, they are required to comply with Section 1 of the Fourteenth Amendment to the Constitution of the United States which operates to limit the power of a state to assert in personam jurisdiction over a non-resident defendant.  See Pennoyer v. Neff, 95 U.S. 714 (1877).  The due process requirements are satisfied when in personam jurisdiction is asserted over a non-resident corporate defendant that has "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice'":  International Shoe Co. v. Washington, 326 U.S. 310 (1945), at p. 316, quoting Milliken v. Meyer, 311 U.S. 457 (1940), at p. 463.  Blackmun J., delivering the opinion of the Court, in Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984), at p. 414, held that "[e]ven when the cause of action does not arise out of or relate to the foreign corporation's activities in the forum State, due process is not offended by a State's subjecting the corporation to its in personam jurisdiction when there are sufficient contacts between the State and the foreign corporation".  In the instant case, the Texas court assumed jurisdiction on the basis of the fact that some of the respondents are resident in that state and carry on business or some are not resident but carry on business in that state.  The finding of sufficient contact with Texas is supported by the evidence and hence, the jurisdiction in Texas was asserted according to the Due Process Clause.  This was conceded by the respondent asbestos companies.  In my opinion, the application of this provision, which is a constitutional requirement, is consistent with our rules of private international law relating to forum non conveniens.  The  comments of Vaughan Black in his case comment, "The Standard for Issuing Antisuit Injunctions in Canada" (1991), 44 C.P.C. (2d) 30, at pp. 31-32, are apt:

 

The Texas courts, like all American courts, apply the due process clause of the 14th Amendment of the United States Constitution as a check against overbroad `long-arm' jurisdiction.  As interpreted, that constitutional provision will not permit a court to assume jurisdiction over a nonresident defendant unless there are minimum contacts between the defendant and the forum.  This limitation on territorial jurisdiction is a significant one.  Indeed, there are instances where Canadian courts have refused to employ the doctrine of forum non conveniens to stay actions brought before them but where, if an analogous suit were brought before an American court, it would almost certainly have been dismissed as lacking the minimum forum contacts required by the U.S. Constitution (e.g. Robinson v. Warren (1982), 31 C.P.C. 305, 55 N.S.R. (2d) 147, 114 A.P.R. 147 (C.A.).  In other words, the Texas courts do have a responsible way to ensure that suits brought before them neither encroach on the sovereignty of foreign jurisdictions nor subject out-of-state defendants to a forum which has an insufficient connection to the subject matter of the suit, but this is derived not from the common law doctrine of forum non conveniens but rather from the U.S. Constitution.  The adjudication of geographically complex cases may require decision makers to be flexible and even imaginative when inquiring into the nature of foreign legal systems.

 

                   With respect to the Texas injunction the Texas court was apparently advised that these claimants were not subject to the jurisdiction of the British Columbia court and therefore not bound by the ex parte injunction granted by Cowan J.  I do not regard this as an attempt to defeat the proceedings in British Columbia and the injunction did not have this effect.  It was therefore wrong to visit the conduct of some of the claimants on the entire class so as to enjoin them from proceeding in Texas.  In the circumstances, this action on the part of the Texas court was not a demonstration of disrespect for the British Columbia proceedings so as to disentitle the decision of the Texas court to the ordinary respect which comity affords.  Moreover, it had little if any relevance to the issue of injustice which is the second step in the SNI analysis.  The extent of the disadvantage occasioned by being subject to an action in Texas is not affected by the inability to stop some of the plaintiffs from continuing those proceedings.  The issue of injustice is resolved on the assumption that the respondents are subject to those proceedings.

 

                   I have concluded therefore that the learned trial judge erred in the exercise of his discretion in respect of the matters that I have outlined above.  The court of appeal dismissed the appeal essentially for the reason that in their view the trial judge had properly exercised his discretion and that, therefore, the court of appeal was not permitted to interfere.  Many of the principles applied by the trial judge were affirmed by Hollinrake J.A. with whom McEachern C.J.B.C. and Taggart J.A. agreed.  Without intending any disrespect to those reasons, it is not necessary to repeat what I have said with respect to those principles.  One matter requires special comment.  I do not agree that because an anti-suit injunction does not directly operate on the foreign court but in personam on the plaintiff in that court, comity is not involved.  The reaction of Wilkey J. in Laker, supra, and, indeed of Esson C.J. in this case demonstrate that, whatever the form of restraint, the court whose proceeding is effectively restrained regards it as an interference with its jurisdiction.

 

Disposition

 

                   I would allow the appeal, set aside the orders below and dismiss the application for an injunction.  I see no basis for differentiating between T & N and the other respondents.  If the action is to proceed in Texas, it is a proper party to the litigation.  It would make little sense to require the claimants to pursue a separate action against one company in British Columbia.  The appellants are entitled to costs both here and in the courts below.

 

                   Appeal allowed with costs.

 

                   Solicitors for the appellants:  Ladner, Downs, Vancouver.

 

                   Solicitors for the respondents Amchem Products Incorporated and others:  Swinton & Company, Vancouver.

 

                   Solicitors for the respondent T & N plc:  Macaulay & Company, Vancouver.

 

                   Solicitors for the respondent The Flintkote Company:  Edwards, Kenny & Bray, Vancouver.

 

 

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