SUPREME COURT OF CANADA
Between:
Teck Cominco Metals Ltd.
Appellant
and
Lloyd’s Underwriters and Seaton Insurance Company
Respondents
And Between:
Teck Cominco Metals Ltd.
Appellant
and
Lombard General Insurance Company of Canada
Respondent
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ.
| Reasons for Judgment: (paras. 1 to 41) |
McLachlin C.J. (Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ. concurring) |
______________________________
Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, 2009 SCC 11, [2009] 1 S.C.R. 321
Teck Cominco Metals Ltd. Appellant
v.
Lloyd’s Underwriters and Seaton Insurance Company Respondents
- and -
Teck Cominco Metals Ltd. Appellant
v.
Lombard General Insurance Co. of Canada Respondent
Indexed as: Teck Cominco Metals Ltd. v. Lloyd’s Underwriters
Neutral citation: 2009 SCC 11.
File No.: 32116.
2008: November 17; 2009: February 20.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Private international law — Choice of forum — Forum conveniens — Pollution produced by mining company in Canada but environmental damage alleged to occur in U.S. — Environmental action against company commenced in U.S. court — Company suing insurers for coverage in relation to environmental damage in that court — Insurers commencing parallel proceedings in British Columbia — Assertion of jurisdiction by U.S. court — Whether British Columbia proceedings should be stayed given prior assertion of jurisdiction — Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s. 11.
Teck sued its insurers in the U.S. for coverage in relation to environmental damage alleged to have occurred in the U.S., downstream from its British Columbia smelter site. The insurers commenced parallel proceedings in British Columbia seeking declaratory orders regarding their obligation (or lack thereof) to defend or indemnify Teck. The parties each took various steps to obtain jurisdictional rulings in order to have the insurance coverage matter adjudicated in their preferred court: the insurers filed a motion in the U.S. District Court seeking an order to dismiss Teck’s claims against them, and Teck filed similar motions in British Columbia seeking orders staying the British Columbia proceedings. The U.S. District Court denied the insurers’ applications to dismiss Teck’s claims against them on the basis of forum non conveniens. The British Columbia Supreme Court refused to grant the stays sought by Teck, and the Court of Appeal upheld that decision.
Held: The appeal should be dismissed.
British Columbia’s Court Jurisdiction and Proceedings Transfer Act creates a comprehensive regime that applies to all cases where a stay of proceedings is sought on the ground that the action should be pursued in a different jurisdiction (forum non conveniens). It requires that in every case, including cases where a foreign judge has asserted jurisdiction in parallel proceedings, all the relevant factors listed in s. 11 be considered in order to determine if a stay of proceedings is warranted. This includes the desirability of avoiding multiplicity of legal proceedings. Section 11 is a complete codification of the common law test for forum non conveniens admitting of no exceptions. [21‑22]
The prior assertion of jurisdiction by a foreign court does not oust the s. 11 inquiry. The usual multifactored test under s. 11 need not give way to a “comity‑based” test when a foreign court positively asserts jurisdiction. Section 11 is itself a comity‑based approach and gives due comity to foreign courts. Comity is not necessarily served by an automatic deferral to the first court asserting jurisdiction. The assertion of jurisdiction by the foreign court is also not an overriding and determinative factor in the s. 11 analysis. The avoidance of multiplicity of proceedings is only one factor, among many, to be considered. Furthermore, the jurisprudence and policy considerations do not support a conclusion that a foreign court’s prior assertion of jurisdiction is an overriding and determinative factor in the forum non conveniens analysis. To adopt such an approach would be to encourage a first‑to‑file system where considerations having little or nothing to do with where an action is most conveniently or appropriately heard would carry the day. Lastly, the exercise of jurisdiction differs on an international level: a distinction should be made between situations involving a uniform and shared approach to the exercise of jurisdiction, such as interprovincial conflicts, and those, such as here, which do not. Blind acceptance of a foreign court’s prior assertion of jurisdiction carries with it the risk of declining jurisdiction in favour of a jurisdiction which is not more appropriate. A holistic approach, in which the avoidance of a multiplicity of proceedings is one factor among others to be considered, better serves the purpose of fair resolution of the forum non conveniens issue with due comity to foreign courts. [21] [23‑25] [29-30]
In this case, the chambers judge carefully considered all of the factors mentioned in s. 11 and did not err in dismissing Teck’s motions to stay the British Columbia proceedings. While a court should strive to avoid parallel proceedings, the desire to avoid them cannot overshadow the objective of the forum non conveniens analysis which is to ensure, if possible, that the action is tried in the jurisdiction that has the closest connection with the action and the parties. [32] [38]
Cases Cited
Distinguished: 472900 B.C. Ltd. v. Thrifty Canada, Ltd. (1998), 168 D.L.R. (4th) 602; Westec Aerospace Inc. v. Raytheon Aircraft Co., 1999 BCCA 243, 67 B.C.L.R. (3d) 278; Ingenium Technologies Corp. v. McGraw‑Hill Cos., 2005 BCCA 358, 49 B.C.L.R. (4th) 120; Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897.
Statutes and Regulations Cited
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601‑9675.
Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s. 11.
Authors Cited
Black, Vaughan, and John Swan. “Concurrent Judicial Jurisdiction: A Race to the Court House or to Judgment?” (2008), 46 Can. Bus. L.J. 292.
Uniform Law Conference of Canada. Uniform Law Conference of Canada — Commercial Law Strategy. Ottawa: The Conference, 2005 (loose‑leaf updated 2008).
APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Mackenzie and Kirkpatrick JJ.A.), 2007 BCCA 249, 67 B.C.L.R. (4th) 101, 279 D.L.R. (4th) 257, [2007] 7 W.W.R. 281, 240 B.C.A.C. 218, 48 C.C.L.I. (4th) 1, 28 C.E.L.R. (3d) 191, 39 C.P.C. (6th) 20, [2007] B.C.J. No. 841 (QL), 2007 CarswellBC 864, affirming a decision of Davies J., 2006 BCSC 1276, 60 B.C.L.R. (4th) 261, [2006] 12 W.W.R. 486, 40 C.C.L.I. (4th) 182, 24 C.E.L.R. (3d) 1, 31 C.P.C. (6th) 34, [2006] B.C.J. No. 1917 (QL), 2006 CarswellBC 2083. Appeal dismissed.
Gordon C. Weatherill, Craig A. B. Ferris and Lisa A. Peters, for the appellant.
Graeme Mew and Anna Casemore, for the respondent Lloyd’s Underwriters.
Written submissions only by Gary M. Nijman, for the respondent Seaton Insurance Company.
James H. MacMaster, Michael J. Sobkin and Christopher A. Rhone, for the respondent Lombard General Insurance Co. of Canada.
The judgment of the Court was delivered by
[1] The Chief Justice — Teck Cominco Metals Ltd. (“Teck”) sued the Lombard General Insurance Co. of Canada (“Lombard”), Lloyd’s Underwriters (“Lloyd’s”) and Seaton Insurance Co. (“Seaton”) (collectively referred to as the “Insurers”) for coverage in relation to environmental damage alleged to have occurred in the United States, downstream from Teck’s British Columbia smelter. Teck commenced its action in Washington State. The Insurers commenced parallel coverage proceedings in British Columbia. The issue on this appeal is whether the British Columbia proceedings should be stayed. The courts below ruled they should not be stayed. I agree with that result, and would dismiss the appeal.
I. Facts
[2] Teck has various mining and smelting operations in British Columbia. In 2002 and 2003 it gave notice to the Insurers of four claims or potential claims in respect of environmental damage arising from activities of a predecessor company, Cominco Ltd. The claims or potential claims arose from Cominco’s operations in four British Columbia sites: Port McNeill, Pinchi Lake, Vancouver and Trail.
[3] The largest claim arises from the discharge of waste material known as “slag” into the Columbia River adjacent to Teck’s smelter in Trail. Allegedly, the discharge accumulated in the Upper Columbia River and Lake Roosevelt in Washington State. In an action filed in the U.S. District Court in 2004 (the “U.S. Environmental Action”), numerous private citizens and the State of Washington seek to hold Teck liable under a U.S. statute (the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. __ 9601-9675) for environmental property damage allegedly caused by the contamination.
[4] Teck takes the position that the Insurers are required to defend and indemnify it in the U.S. Environmental Action. In the period of 1958 to 1985, Cominco Ltd. purchased general and excess liability insurance policies from the Insurers (the “Policies”). Apart from coverage limits, the Policies provide similar coverage, requiring each insurer to defend and indemnify Teck in the event of any alleged liability resulting from an occurrence of property damage taking place during the period of coverage anywhere in the world. Teck says that the alleged contamination in Washington State is covered by the Policies.
[5] The Insurers deny that they are obligated to compensate Teck on various grounds.
[6] The extent of the damages faced by Teck in the U.S. Environmental Action is not known; however, it is expected to exceed the limits underlying each of the policies, which collectively total over $779 million. (See motions judgment, 2006 BCSC 1276, 60 B.C.L.R. (4th) 261, at paras. 35 and 63, and Court of Appeal judgment, 2007 BCCA 249, 67 B.C.L.R. (4th) 101, at paras. 16-17.)
[7] On November 23, 2005, Teck commenced an action in the Washington State Superior Court seeking a declaratory judgment regarding its right to insurance coverage under the Policies in respect of the U.S. Environmental Action (the “U.S. Coverage Action”). On that same day, Lloyd’s commenced an action in the Supreme Court of British Columbia seeking declaratory orders regarding their obligation (or lack thereof) to defend or indemnify Teck in respect of the claims or potential claims concerning the four British Columbia sites. Seaton, a defendant in the Lloyd’s action, also filed a counterclaim. Lombard subsequently filed a similar action to Lloyd’s. (The Insurers’ actions are collectively referred to as the “B.C. Coverage Action”.)
[8] The parties have each taken various steps to obtain jurisdictional rulings in order to have the insurance coverage matter adjudicated in their preferred court. As a result, the U.S. Coverage Action was moved from the Washington State Superior Court to the United States District Court for the Eastern District of Washington (“U.S. District Court”). The Insurers filed a motion in the U.S. District Court seeking an order to dismiss Teck’s claims against them in the U.S. Coverage Action. Teck filed similar motions in the British Columbia Supreme Court seeking orders staying the B.C. Coverage Action.
[9] On May 1, 2006, Suko J. of the U.S. District Court denied the Insurers’ applications to dismiss Teck’s claims against them on the basis of forum non conveniens.
[10] By agreement of the parties, the U.S. District Court temporarily stayed the proceedings in the U.S. Coverage Action pending this Court’s disposition of the appeal.
II. Judicial History
A. Supreme Court of British Columbia (Davies J.), 2006 BCSC 1276, 60 B.C.L.R. (4th) 261
[11] The chambers judge held that s. 11 of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (“CJPTA”), is “part of a comprehensive remedial statutory scheme that is intended to codify the determination of jurisdictional issues in British Columbia” (para. 102). He denied the stay of the B.C. Coverage Action on the grounds that:
· The convenience and expense of the parties and potential witnesses favoured litigation in British Columbia rather than Washington State, having regard to: the residence of the parties and where each carries on business; the fact that the issues in the coverage actions (disclosure, risk assessment and interpretation issues related to coverage and exclusions) have little, if any, connection to Washington State; and the fact that the overall cost of litigation would be greater if the coverage action proceeded in Washington State.
· The law to be applied to issues in the action would likely be British Columbia law. Washington law would not apply because: the potential Washington victims are not beneficiaries to the Policies; the Insurers’ obligations are only to Teck; the coverage action involves declarations in relation to British Columbia sites; and all of Teck’s alleged wrongful actions, while affecting foreign residents, occurred solely in British Columbia.
· The desirability of avoiding multiplicity of legal proceedings and avoiding conflicting decisions in different courts requires a multi-factored analysis, in which the prior assertion of jurisdiction by the U.S. District Court is an important but not determinative factor.
· Any damage award ordered by the U.S. District Court would be enforceable in British Columbia. While enforcement of any declaratory judgment could be more problematic, as a practical matter, it was unlikely that Teck would have to resort to execution proceedings to obtain satisfaction from the Insurers.
· The fair and efficient working of the Canadian legal system as a whole favoured litigation in British Columbia, as it would not be efficient to have contracts of insurance interpreted in accordance with more than one system of law.
[12] Considering all the factors in s. 11 of the CJPTA, the chambers judge found that British Columbia was the jurisdiction with the closest connection to Teck and the subject matter of the coverage action (the Policies). Consequently, on August 21, 2006, he refused to grant the stays sought by Teck in the B.C. Coverage Action.
B. Court of Appeal for British Columbia (Newbury, Mackenzie and Kirkpatrick JJ.A.), 2007 BCCA 249, 67 B.C.L.R. (4th) 101
[13] Newbury J.A., writing for the court, found that the chambers judge properly considered and weighed each factor in s. 11(2) of the CJPTA. She agreed with Davies J. that the principle of comity did not require deference to the first court to assert jurisdiction. Finding no error in Davies J.’s conclusion that British Columbia was the more appropriate forum for the trial of the coverage action, Newbury J.A. dismissed Teck’s appeal.
III. Relevant Statutory Provisions
[14] Section 11 of the CJPTA provides that:
11(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.
(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including
(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,
(b) the law to be applied to issues in the proceeding,
(c) the desirability of avoiding multiplicity of legal proceedings,
(d) the desirability of avoiding conflicting decisions in different courts,
(e) the enforcement of an eventual judgment, and
(f) the fair and efficient working of the Canadian legal system as a whole.
IV. Issues
[15] The only issue on this appeal is whether the coverage proceedings commenced in British Columbia should be stayed, in view of the prior parallel proceedings in Washington State and the assertion of jurisdiction by the U.S. District Court. Resolving this issue requires us to consider the application of s. 11 of the CJPTA in circumstances where prior proceedings have been commenced outside British Columbia and the foreign court has refused to stay its action.
[16] The reasons will go on to consider whether the chambers judge acted properly in rejecting the Teck’s application to decline jurisdiction and stay the B.C. Coverage Action, having regard to the appropriate test.
V. Analysis
A. Whether the Section 11 Test Iis Trumped by a Comity-Based Test
[17] Teck submits that where a foreign court has assumed jurisdiction in parallel proceedings, the usual multifactored test under s. 11 of the CJPTA must give way to a “comity-based” test that respects the foreign court’s decision to take jurisdiction.
[18] In favour of this approach, Teck argues that there is a distinction between a situation where it is submitted that a foreign court would be the appropriate forum, and the situation where a foreign court has in fact asserted jurisdiction. A foreign court can be said to have asserted jurisdiction when it has been asked to decline its jurisdiction over the matter and has refused to do so, holding that it is the appropriate forum to hear the dispute. Teck argues that where a foreign court has asserted jurisdiction on the basis of factors similar to those found in s. 11 of the CJPTA, s. 11 does not apply and the court may decline jurisdiction simply on the basis that the foreign court has asserted jurisdiction, and that comity requires that the domestic court recognize that prior assertion of jurisdiction.
[19] An alternative, slightly softer version of this argument is that assertion of jurisdiction by the foreign court is a factor of overwhelming significance in the determination of whether the local forum is appropriate (forum conveniens) and that, since the U.S. District Court has positively asserted jurisdiction, the British Columbia courts are effectively bound to stay the parallel actions in British Columbia.
[20] I will consider each of these arguments in turn.
[21] The first argument is that s. 11 of the CJPTA does not apply where a foreign court has asserted jurisdiction. I cannot agree. The CJPTA creates a comprehensive regime that applies to all cases where a stay of proceedings is sought on the ground that the action should be pursued in a different jurisdiction (forum non conveniens). It requires that in every case, including cases where a foreign judge has asserted jurisdiction in parallel proceedings, all the relevant factors listed in s. 11 be considered in order to determine if a stay of proceedings is warranted. This includes the desirability of avoiding multiplicity of legal proceedings. But the prior assertion of jurisdiction by a foreign court does not oust the s. 11 inquiry.
[22] Section 11 of the CJPTA was intended to codify the forum non conveniens test, not to supplement it. The CJPTA is the product of the Uniform Law Conference of Canada. In its introductory comments, the Conference identified the main purposes of the proposed Act, which included bringing “Canadian jurisdictional rules into line with the principles laid down by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, and Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897” (Uniform Law Conference of Canada — Commercial Law Strategy (loose-leaf), at p. 3). Further, the drafters of the model Act confirmed that s. 11 of the CJPTA was intended to codify the common law forum non conveniens principles in “comments to section 11”:
11.1 Section 11 is meant to codify the doctrine of forum non conveniens, which was most recently confirmed by the Supreme Court of Canada in Amchem Products Inc. v. British Columbia (1993). The language of subsection 11(1) is taken from Amchem and the earlier cases on which it was based. The factors listed in subsection 11(2) as relevant to the court’s discretion are all factors that have been expressly or implicitly considered by courts in the past. [p. 11]
Section 11 of the CJPTA thus constitutes a complete codification of the common law test for forum non conveniens. It admits of no exceptions.
[23] Teck submits that the usual multifactored test under s. 11 of the CJPTA must give way to a “comity-based” test when a foreign court positively asserts jurisdiction. To the extent this argument implies that the usual test does not give due comity to foreign courts, it must be rejected. Section 11 of the CJPTA is itself a comity-based approach. As will be discussed, comity is not necessarily served by an automatic deferral to the first court that asserts jurisdiction. It follows that Teck’s argument, that s. 11 does not apply where a foreign court has already asserted jurisdiction over the matter, cannot succeed.
[24] Alternatively, it is argued that if s. 11 applies, the assertion of jurisdiction by the foreign court is an overriding and determinative factor in the s. 11 analysis. This argument also must be rejected.
[25] First, had actual assertion of jurisdiction by a foreign court been seen as a factor that should override all others, one would have expected the legislature to have stated this expressly. Rather, avoidance of multiplicity of proceedings is simply listed along with other factors. This suggests that the existence of foreign proceedings is only one factor, among many, to be considered in a forum non conveniens analysis.
[26] Second, the authorities are against this contention. Teck says 472900 B.C. Ltd. v. Thrifty Canada, Ltd. (1998), 168 D.L.R. (4th) 602 (B.C.C.A.), Westec Aerospace Inc. v. Raytheon Aircraft Co., 1999 BCCA 243, 67 B.C.L.R. (3d) 278, and Ingenium Technologies Corp. v. McGraw-Hill Cos., 2005 BCCA 358, 49 B.C.L.R. (4th) 120, support the fact that a prior assertion of jurisdiction is a factor of overwhelming significance. In Thrifty, the British Columbia Supreme Court declined to stay its proceedings in view of a prior assertion of jurisdiction by the Ontario court over a parallel action. The Court of Appeal allowed the appeal on the basis that the chambers judge erred by giving no weight to the fact the parties had expressly agreed that the contract would be interpreted in accordance with Ontario law and had agreed to attorn to the jurisdiction of the court of Ontario. Ultimately, it was the various connections to Ontario, not simply the prior assertion of jurisdiction by the Ontario court, that warranted the granting of a stay in the British Columbia proceedings.
[27] In Westec, the defendant commenced an action in Kansas. Shortly thereafter, the plaintiff sued in British Columbia. The Court of Appeal, in determining whether to grant a stay in the British Columbia action, considered a number of factors, including: place of incorporation, place of business, location of assets and the formation and performance of the contract. (Unlike Thrifty, the foreign court had not asserted jurisdiction.) The Court of Appeal concluded that both fora had “a real and substantial connection to the dispute” (para. 46) and ultimately decided to stay the British Columbia action on the basis that the plaintiff had failed to establish a juridical advantage that would be lost if the proceedings were stayed.
[28] The final case relied on by Teck is Ingenium. In Ingenium, the British Columbia Court of Appeal reviewed the chambers judge’s decision not to stay the British Columbia action in the face of a positive assertion of jurisdiction by the U.S. District Court for the Southern District of New York over parallel proceedings in New York. The Court of Appeal found that the chambers judge was correct in concluding that “the existence of parallel proceedings does not trump all other factors” (para. 9). However, the court went on to allow the appeal on the basis that the chambers judge erred in attaching no significance to the fact the U.S. District Court had positively asserted jurisdiction in her analysis. I do not consider that Ingenium laid down a new test for the determination of forum non conveniens in cases where a foreign court has assumed jurisdiction in parallel proceedings.
[29] Finally, policy considerations do not support making a foreign court’s prior assertion of jurisdiction an overriding and determinative factor in the forum non conveniens analysis. To adopt this approach would be to encourage a first-to-file system, where each party would rush to commence proceedings in the jurisdiction which it thinks will be most favourable to it and try to delay the proceedings in the other jurisdiction in order to secure a prior assertion in their preferred jurisdiction. Technicalities, such as how long it takes a particular judge to assert jurisdiction, might be determinative of the outcome. In short, considerations that have little or nothing to do with where an action is most conveniently or appropriately heard, would carry the day. Such a result is undesirable and inconsistent with the language and purpose of s. 11, discussed above.
[30] Also, the extent to which approaches to the exercise of jurisdiction differ on an international level also weighs in favour of rejecting Teck’s approach. A distinction should be made between situations that involve a uniform and shared approach to the exercise of jurisdiction (e.g. interprovincial conflicts) and those, such as the present, that do not. In the latter, blind acceptance of a foreign court’s prior assertion of jurisdiction carries with it the risk of declining jurisdiction in favour of a jurisdiction that is not more appropriate. A holistic approach, in which the avoidance of a multiplicity of proceedings is one factor among others to be considered, better serves the purpose of fair resolution of the forum non conveniens issue with due comity to foreign courts.
[31] For the foregoing reasons, I conclude that s. 11 of the CJPTA applies to the motions before the British Columbia courts to decline jurisdiction, and that the prior assertion of jurisdiction by the U.S. District Court is merely one factor to be considered, among others.
B. Applying the Proper Principles, Did the Chambers Judge Err in Permitting the B.C. Coverage Action to Continue?
[32] As set out earlier, the chambers judge dismissed Teck’s motions to stay the B.C. Coverage Action. In arriving at this conclusion, the chambers judge carefully considered all of the factors mandated for consideration by s. 11(2) of the CJPTA, namely: the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum (s. 11(2)(a)); the law to be applied to issues in the proceeding (s. 11(2)(b)); the desirability of avoiding multiplicity of legal proceedings (s. 11(2)(c)); the desirability of avoiding conflicting decisions in different courts (s. 11(2)(d)); the enforcement of an eventual judgment (s. 11(2)(e)); and the fair and efficient working of the Canadian legal system as a whole (s. 11(2)(f)).
[33] Before this Court, Teck argued that the chambers judge erred in disregarding the fact that the insurance coverage sought was in relation to damages claimed in Washington State. Teck submits that the U.S. District Court’s assertion of jurisdiction should be respected because the issues in the environmental action brought by Washington residents under U.S. legislation may impact on the issue of insurance coverage in this action.
[34] The difficulty with this submission is that the chambers judge carefully considered these arguments and the totality of the evidence before him. Having done so, he determined that the central issues in the coverage actions (disclosure, risk assessment, and policy interpretation) weighed in favour of British Columbia, and that the only coverage issues properly the substance of the U.S. Environmental Action are inconsequential.
[35] He was alive to the fact that the environmental damage had occurred in Washington State, but held that that fact alone did not lead to the conclusion that foreign law should apply to the coverage action. On the contrary, he concluded that it would be unreasonable to apply Washington law because, inter alia, Teck’s alleged wrongful actions occurred solely in Canada, the proceedings involved other British Columbia sites with no connection to Washington State, and the Washington residents are not beneficiaries to the Policies.
[36] The chambers judge was also alive to the concern that on a forum non conveniens application, the court should strive to avoid a situation where two jurisdictions may be dealing with the same subject matter. While finding the U.S. District Court’s prior assertion of jurisdiction to be a factor of high importance, he concluded that it could not prevail in view of the fact British Columbia was the forum most closely connected with Teck and the Policies, and that Washington State, a jurisdiction with at best a tenuous connection to the parties and the Policies, was not an appropriate forum.
[37] I see no error in the reasons or the conclusion of the chambers judge. He considered all the relevant factors under s. 11 of the CJPTA. Those factors support his decision to refuse to stay the B.C. Coverage Action.
[38] Teck argues that a refusal to stay the B.C. Coverage Action places the parties in the difficult position of having legal proceedings on the issue of insurance coverage in two separate jurisdictions. While I am sympathetic to the difficulties presented by parallel proceedings, the desire to avoid them cannot overshadow the objective of the forum non conveniens analysis, which is “to ensure, if possible, that the action is tried in the jurisdiction that has the closest connection with the action and the parties” (Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897, at p. 912).
[39] Teck also argues that to allow the coverage action to proceed in British Columbia raises problems with regard to the enforcement of any judgment obtained in the U.S. Coverage Action. If the U.S. District Court proceeding (which has been temporarily stayed pending the outcome of this appeal) were to conclude first, the resultant judgment would ordinarily be enforceable in Canada. Would the British Columbia court be bound to recognize the judgment, thus effectively nullifying the British Columbia proceeding? Or would recognition of the foreign judgment be precluded on the basis that there is ongoing litigation on the same subject matter in British Columbia? Professor Black and Mr. Swan suggest the availability of three approaches to this problem: (1) a race where the first judgment handed down prevails; (2) an absolute preference for local proceedings; or (3) a middle ground that adopts a general first-to-judgment rule but affords additional defences to enforcement that may be engaged in some circumstances: V. Black and J. Swan, “Concurrent Judicial Jurisdiction: A Race to the Court House or to Judgment?” (2008), 46 Can. Bus. L.J. 292.
[40] I do not propose to answer this question, as it was not fully developed in the courts below or before us; nor is the answer necessary in order to dispose of the appeal. As mentioned above, the enforcement issue was disposed of by the chambers judge on the basis that he was satisfied that it was unlikely that Teck would have to resort to execution proceedings in order to obtain satisfaction from the Insurers.
VI. Conclusion
[41] For the foregoing reasons, I would dismiss the appeal, costs to the respondents.
Appeal dismissed with costs.
Solicitors for the appellant: Lawson Lundell, Vancouver.
Solicitors for the respondent Lloyd’s Underwriters: Nicholl, Paskell‑Mede, Toronto.
Solicitors for the respondent Seaton Insurance Company: Alexander Holburn Beaudin & Lang, Vancouver.
Solicitors for the respondent Lombard General Insurance Co. of Canada: Branch, MacMaster, Vancouver.
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