Anti-Suit Injunctions

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 141-156

141

CHAPTER 7

ANTISUIT

INJUNCTIONS

A. INTRODUCTION

In Amchem Products Inc. v. British Columbia (Workers’ Compensation

Board),1 Sopinka J. pointed out that the court s had developed two rem-

edies to control the choice of forum by the parties. The f‌irst was for the

domestic defendant to seek a stay of the local action on the ground of

forum non convenie ns.2 The second was for the foreign defendant, actual

or potential, to seek an anti-suit injunction from the local courts in an

attempt to restrain proceedings launched or threatened abroad. Justice

Sopinka described such an injunction as a “more aggressive remedy,

which [might] be granted by the domestic court at the request of a de-

fendant or defendants . . . in a foreign suit.”3 He continued:

In the usual situation the plaintiff in the domestic court moves to re-

strain the defendant or defendants from launching or continuing a

proceeding in the courts of another jurisdiction. Occasionally . . . the

defendants in a foreign ju risdiction who allege that t he plaintiff in that

jurisdiction has selected an inappropriate forum seek an injunction

from the courts of t he alleged appropriate forum, in which no proce ed-

ing is pending, to re strain continuation of the foreign proceedings.4

1[1993] 1 S.C.R. 897 [Amchem].

2See Chapter 6.

3Amchem, above note 1 at 912.

4Ibid. at 912–13.

CONFLICT OF LAWS

142

Justice Sopinka emphasi zed that the injunction did not operate directly

on the foreign court but on the person of the foreign plaintiff. It was,

therefore, essential that the foreign plaintiff be subject to the jurisdic-

tion of the issuing court.5 Despite the fact that the injunction was not

directed at the foreign court, it did constitute an indirect attack on the

foreign proceedings and, therefore, its issuance “raise[d] serious issues

of comity.”6 Justice Sopinka said that a case could be made for the view

that anti-suit injunctions should be restricted to those situations in

which it was necessary to protect the jurisdiction of the issuing court

or to prevent the evasion of some important public policy.7 According

to Sopinka J., a court should entertain an application for an anti-suit

injunction only where “a serious injustice [would] be occasioned as the

result of the failure of a foreign court to decline jurisdiction.”8

The question of whether to issue an anti-suit injunction typically

ar ises in wh at are d escr ibed as “al tern ative forum” case s wher e a cho ice

has to be made between the domestic forum, which is alleged to be the

natural forum for the action, and the proposed foreign forum. Occa-

sionally, however, the question of whether to grant an injunction may

arise in a “single forum” case in which an attempt is made “to restrain

a party from proceeding i n a foreign court which alone has jur isdiction

over the relevant dispute.”9 The English courts have indicated that the

relevant question to be addressed is whether, in all the circumstances,

the foreign proceedings are unconscionable and unjust.10

In Airbus Industrie GIE v. Patel,11 Lord Goff suggested that, as a gen-

eral rule, before an anti-suit injunction could properly be granted, comity

required that the domestic forum have a suff‌icient interest in the matter

so as to justify the indirect interference with the foreign court. In an

alternative forum case, t hat interest was provided by the fact that the do-

mestic forum was the natur al forum for the action. In a single forum case,

5InHudon v. Geos L anguage Corp. (1997), 34 O.R. (3d) 14 (Div. Ct.) [Hudon],

which is dis cussed in detail below i n Section D(1), the jurisd iction of the On-

tario cour t to issue an injunction seems to h ave been based solely on the foreig n

plaintif f’s participation in t he domestic litigation becau se it was a Japanese

corporation w ith no obvious presence in O ntario.

6Amchem, above note 1 at 913.

7Ibid. at 914.

8Ibid.

9Airbus Industr ie GIE v. Patel, [1998] 2 All E.R. 257 at 265 (H.L.), Lord Goff [Air-

bus]. See Lawrence Collins, ed., Dicey, Morris and Collins on The Conf‌lic t of Laws,

14th ed. (London: Sweet & Maxwel l, 2006) at para. 12-077.

10See, generally, British Airways Board v. Laker Airways Ltd., [1985] A.C. 58 (H.L.)

and Midland Bank Plc v. Laker Airways Ltd., [1986] Q.B. 689 (C.A.).

11Above note 9.