CHAPTER 7 Anti-Suit Injunctions

• Date: 07 April 2025

173

CHA PTER 7

ANTI-SUIT

INJUNCTIONS

A. INTRODUCTION

In Amchem Products Inc v British Columbia (Workers’ Compensation

Board),1 Sopinka J noted that the courts had developed two remedies

to control the choice of forum by the parties. The f‌irst remedy is a stay

of the local proceedings.2 The second remedy is an anti-suit injunction

from the local courts which purports 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 defendant or defendants . . . in a foreign suit.”3

He continued:

In the usual situation the plainti in the domestic court moves to

restrain the defendant or defendants from launching or continuing a

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

defendants in a foreign jurisdiction who allege that the plainti in that

jurisdiction has selected an inappropriate forum seek an injunction

from the courts of the alleged appropriate forum, in which no proceed-

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

1 [1993] 1 SCR 897 [Amchem].

2 See Chapter 6.

3 Amchem, above note 1 at 912.

4 Ibid at 912–13.

CONFLICT OF LAWS

174

Justice Sopinka emphasized that the injunction did not operate directly

on the foreign court but rather in personam on the foreign plainti. It

was, therefore, essential that the foreign plainti be subject to the juris-

diction 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 In his view,

a court should entertain an application for an anti-suit injunction only

where “a serious injustice [would] be occasioned as a result of the failure

of a foreign court to decline jurisdiction.”8

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

arises in what are described as “alternative forum” cases. In these cases,

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

to be the natural forum for the action, and the proposed foreign forum.

Occasionally, 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 in a foreign court which alone has juris-

diction over the relevant dispute.”9 In such cases, 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 Go suggested that, as a

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

5 In Hudon v Geos Language Corp (1997), 34 OR (3d) 14 (Div Ct) [Hudon], which

is discussed in detail below in Section C(1), the jurisdiction of the Ontario court

to issue an injunction seems to have been based solely on the foreign plainti’s

participation in the domestic litigation. It was a Japanese corporation with no

obvious presence in Ontario.

6 Amchem, above note 1 at 913. For more on comity in this context see SAS Institute

Inc v World Programming Ltd, [2020] EWCA Civ 599 at paras 90–91 and 100–12

[SAS Institute].

7 Amchem, above note 1 at 914.

8 Ibid.

9 Airbus Industrie GIE v Patel, [1998] 2 All ER 257 at 265 (HL), Lord Go [Air-

bus]. See Lawrence Collins & Jonathan Harris, eds, Dicey, Morris and Collins on

the Conf‌lict of Laws, 16th ed (London: Sweet & Maxwell, 2022) at para 12–136

[Dicey, Morris and Collins].

10 See, generally, British Airways Board v Laker Airways Ltd, [1985] AC 58 (HL);

Midland Bank Plc v Laker Airways Ltd, [1986] QB 689 (CA). See also Pe Ben

Oilf‌ield Services (2006) Ltd v Arlint, 2019 ABCA 400 [Pe Ben], a dispute involving

proceedings that could only be brought in British Columbia.

11 Above note 9.