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Forum Non Conveniens – When Our Courts Pass The Buck

By Susan Smith (guest author) (posts)

Forum non conveniens is a legal doctrine which allows a court to decline to exercise its jurisdiction over a lawsuit, on the basis that a court in another forum, or jurisdiction, is more suitable or convenient.  Normally, forum non conveniens arises when a defendant challenges a local court’s exercise of jurisdiction.  In a recent case involving two Ontario plaintiffs, who were injured on separate holidays in Cuba, the Supreme Court of Canada held in Club Resorts Ltd. v. Van Breda (and Charron), 2012 SCC 17 that the court’s exercise of discretion to defer to another court’s jurisdiction is highly dependent on the facts, or individual context, of each case.

The Supreme Court of Canada emphasized the distinction between the existence of a court’s jurisdiction, and the exercise of it.  If jurisdiction is established (by a “real and substantial connection” between the subject matter of the litigation and the local forum), a court may nevertheless be asked not to exercise that jurisdiction on the basis of forum non conveniens.

In order to establish forum non conveniens, a defendant must show that an alternative forum is clearly more appropriate and that, in light of the characteristics of the alternate forum, it would be fairer and more efficient to chose that forum and to deny the plaintiff the benefits of the local forum.  It is not enough to show that a comparable forum exists.  A court must be able to conclude that the other forum is in a better position to dispose fairly and efficiently of the litigation.

A defendant may raise diverse facts, considerations and concerns in support of an argument that there is a fairer and more efficient forum elsewhere.  In Club Resorts Ltd. v. Van Breda (and Charron), the Supreme Court of Canada reviewed the wide range of factors considered in the case law, along with the factors in the Court Jurisdiction and Proceedings Transfer Act such as:

(a)   the comparative convenience and expense for the parties and their witnesses, in litigating in the local court or in any alternative forum;

(b)   the substantive and procedural law to be applied to issues in the proceeding;

(c)   the desirability of avoiding multiplicity of legal proceedings;

(d)   the desirability of avoiding conflicting decisions in different courts;

(e)   the enforcement of an eventual judgment; and

(f)   the fair and efficient working of the Canadian legal system as a whole.

In view of the goals of fairness and efficiency, the Supreme Court of Canada concluded that the doctrine of forum non conveniens focuses on the individual context of each case.  The relevant factors to be considered include:

(i)     the domiciles of the parties;

(ii)   the locations of the witnesses and pieces of evidence;

(iii)  the comparative cost of transferring the case to another jurisdiction;

(iv)  the impact of a transfer on the conduct of the litigation or on related or parallel proceedings;

(v)   the loss of juridical advantage (for example through a local or procedural law);

(vi)  the possibility of conflicting judgments

(vii) problems related to the recognition and enforcement of judgments; and

(viii)the relative strengths of the connections of the two parties.

In favour of Van Breda and Charron, the Supreme Court of Canada declined to give effect to the forum non conveniens argument and concluded that Club Resorts Ltd. had not met its burden of showing that a Cuba forum would be clearly more appropriate.  A trial in Cuba would present serious challenges to the Ontario plaintiffs, including problems with witnesses, concerns about local procedures, and expenses connected with litigating in Cuba.  The Court concluded, “All things considered, the burden on the plaintiffs clearly would be far heavier if they were required to bring their action in Cuba.  They would face substantial additional expenses and would be at a clear disadvantage relative to the defendants.”  Hence, it could not be said that it would be fairer or more efficient to dispose of the claims in Cuba, and both actions were allowed to proceed in Ontario where they were initially commenced.

The outcome in Club Resorts Ltd. v. Van Breda (and Charron) illustrates the heavy burden on a defendant who is raising an argument of forum non conveniens. Although a local forum is usually favoured, when litigation involves multiple claims, or parties in multiple jurisdictions, the individual context may be sufficient to meet the test for the forum non conveniens doctrine.

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