Amchem V. British Columbia Notes

Amchem v. British Columbia (Canada)

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.

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.

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.

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.

Holding

Test for anti-suit injunctions in Canada

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.

Proceedings pending before foreign forum and application made before foreign forum first: 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.

Proceedings in domestic forum or potential proceedings in domestic forum: 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.

Reviewing the decision of the foreign 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...

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