By Munera Lawyers
The doctrine of forum non conveniens is the discretionary common-law power of the Court to decline exercise its jurisdiction over a matter on the basis that another jurisdiction is more suitable or convenient. The doctrine usually arises when a defendant challenges the jurisdiction of the court in which a claim is brought. The doctrine draws its origins from 16th Century Scottish law, which made it way to New York in 1929 when Paxton Blair used the term in American courts.[1] The doctrine has been adopted in all of Canada’s common law provinces.[2]
The doctrine of forum non conveniens is considered only once the court has determined that jurisdiction is established, or that it has jurisidiction simpliciter. For more on this issue, take a look at MUNERA’s article “What is Jurisdiction Simpliciter?” (LINK). The defendant(s) raising the issue of forum non conveniens bears the burden of demonstrating why another forum should hear the action.[3] If the claimant fails to successfully invoke the doctrine of forum non conveniens, then the litigation must proceed before the Court in which the plaintiff made the claim.
The leading Canadian case on the issue of forum non conveniens is Van Breda, in which the Supreme Court of Canada held that the Court’s exercise of discretion to defer to another jurisdiction is highly fact-specific and informed by the individual context of the particular case before the Court.[4] The objective is to determine the appropriate forum that would ensure fairness to the parties and provide and efficient process for resolving the dispute. In order to make such determination, the factors to consider include:
(i) the domiciled residence of the parties;
(ii) the locations of the witnesses and pieces of evidence;
(iii) the comparative cost of parallel proceedings;
(iv) the impact of a transfer on the conduct of the litigation or on related or parallel proceedings;
(v) juridical advantage;
(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.[5]
The defendant raising the issue of forum non conveniens must demonstrate that an alternative forum is clearly more appropriate. This requires more than showing that another forum simple exists; the other forum must be in a better position to dispose of the litigation fairly and efficiently. Successful claims of forum non conveniens include Haaretz v. Goldhar, where the Supreme Court of Canada held that the more appropriate forum for the litigation was Israel as the comparative convenience and expense for both parties favored Isreal in the context of a defamation claim against a popular Isreali media source.[6] Thus, based on the specifics of a case, a court can (i) decline to exercise its jurisdiction on the basis of forum non conveniens, or (ii) where the defendant(s) fails to discharge its burden of demonstrating forum non conveniens the court will find that the jurisdiction is not forum non conveniens and assume jurisdiction of the dispute.
In Van Breda, the Supreme Court declined to give effect to Defendants’ forum non conveniens argument and concluded that they had not met the burden of demonstrating that another forum was clearly more appropriate.[7]
[1] Mikis, F, Nathaly Vermette and Robert F. Hungerford, “The Doctrine of Forum Non Conveniens: Canada and the United Stated Compared” Federation of Defence and Corporate Counsel Quaterly, October 2009 at 2.
[2] Ibid at 6.
[3] Club Resorts Ltd. v Van Breda [2012] 1 SCR 572 [“Van Breda”] at para 103
[4] 2012 SCC 17.
[5] Ibid at 110.
[6] Haaretz v. Goldhar, [2018] 2 SCR 3, at 180.
[7] Supra note 3 at 118.
NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.