Lombard General Insurance Co. of Canada v. Cominco Ltd. et al., (2009) 384 N.R. 351 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 17, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2009), 384 N.R. 351 (SCC);2009 SCC 11;[2009] 3 WWR 191;40 CELR (3d) 159;[2009] SCJ No 11 (QL);JE 2009-395;303 DLR (4th) 385;[2009] 1 SCR 321;88 BCLR (4th) 1;266 BCAC 32;70 CCLI (4th) 1;384 NR 351

Lombard General v. Cominco Ltd. (2009), 384 N.R. 351 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2009] N.R. TBEd. FE.014

Teck Cominco Metals Ltd. (appellant) v. Lloyd's Underwriters and Seaton Insurance Company (respondents)

Teck Cominco Metals Ltd. (appellant) v. Lombard General Insurance Company of Canada (respondent)

(32116; 2009 SCC 11; 2009 CSC 11)

Indexed As: Lombard General Insurance Co. of Canada v. Cominco Ltd. et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Charron and Rothstein, JJ.

February 20, 2009.

Summary:

Two actions arose respecting insurance coverage issues. A defendant (Teck Cominco) applied to stay the British Columbia proceedings on the basis that proceedings had been commenced in Washington State.

The British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. 1276, refused to decline jurisdiction over the actions. Teck Cominco sought, inter alia, directions that leave to appeal the order was not required and that the appeal should proceed as of right. Alternatively, it sought an order that leave to appeal be granted.

The British Columbia Court of Appeal, per Kirkpatrick, J.A., in a decision reported at 229 B.C.A.C. 316; 379 W.A.C. 316, held that leave to appeal was required and granted leave to appeal. The appeal proceeded.

The British Columbia Court of Appeal, in a decision reported at 240 B.C.A.C. 218; 398 W.A.C. 218, dismissed the appeal. The court found no error in the chamber judge's conclusion that British Columbia was the more appropriate forum for the trial of the coverage action. Tech Cominco appealed.

The Supreme Court of Canada dismissed the appeal.

Conflict of Laws - Topic 8

General - Doctrine of comity - [See first and second Conflict of Laws - Topic 1664 ].

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - A party argued that s. 11 of the Court Jurisdiction and Proceedings Transfer Act (B.C.) did not apply where a foreign court had asserted jurisdiction - The Supreme Court of Canada disagreed, stating that the Act created a comprehensive regime that applied to all cases where a stay of proceedings was sought on the ground that the action should be pursued in a different jurisdiction (forum non conveniens) - It required that in every case, including cases where a foreign judge had asserted jurisdiction in parallel proceedings, all the relevant factors listed in s. 11 be considered in order to determine if a stay of proceedings was warranted - This included the desirability of avoiding multiplicity of legal proceedings - But the prior assertion of jurisdiction by a foreign court did not oust the s. 11 inquiry - Section 11 was intended to codify the forum non conveniens test, not to supplement it - Section 11 constituted a complete codification of the common law test for forum non conveniens - There were no exceptions - Section 11 was a comity-based approach - Comity was not necessarily served by an automatic deferral to the first court that asserted jurisdiction - See paragraphs 21 to 23.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - A party argued that s. 11 of the Court Jurisdiction and Proceedings Transfer Act (B.C.) did not apply where a foreign court had asserted jurisdiction - Alternatively, it argued that if s. 11 applied, the assertion of jurisdiction by the foreign court was an overriding and determinative factor in the s. 11 analysis - The Supreme Court of Canada rejected the argument - 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 was simply listed along with other factors - This suggested that the existence of foreign proceedings was only one factor, among many, to be considered in a forum non conveniens analysis - Second, the authorities were against this contention - Third, policy considerations did not support the argument - 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 thought would 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 took a particular judge to assert jurisdiction, might be determinative of the outcome - Considerations that had little or nothing to do with where an action was most conveniently or appropriately heard, would carry the day - Such a result was undesirable and inconsistent with the language and purpose of s. 11 - Also, the extent to which approaches to the exercise of jurisdiction differed on an international level also weighed in favour of rejecting the party's approach - A holistic approach, in which the avoidance of a multiplicity of proceedings was one factor among others to be considered, better served the purpose of fair resolution of the forum non conveniens issue with due comity to foreign courts - See paragraphs 24 to 30.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - [See Conflict of Laws - Topic 7245 ].

Conflict of Laws - Topic 1666

Actions - General - Forum conveniens - Stay of proceedings where action pending in another jurisdiction - [See Conflict of Laws - Topic 7245 ].

Conflict of Laws - Topic 7232

Contracts - Choice of law - Jurisdiction with closest and most substantial connection - [See Conflict of Laws - Topic 7245 ].

Conflict of Laws - Topic 7245

Contracts - Choice of law - Insurance contracts - A defendant (TCML) applied to stay the two British Columbia actions by insurers each seeking a declaration that it had no obligation to defend or indemnify TCML respecting environmental damage claims at four locations in British Columbia on the basis that proceedings had already been commenced in Washington State - The British Columbia Court of Appeal held that a chambers judge did not err in concluding that British Columbia was the most appropriate forum for the trial of the coverage issue and that the connections of the parties and the litigation to Washington were weak in comparison - The chambers judge properly considered and weighed each factor in s. 11(2) of the Court Jurisdiction and Proceedings Transfer Act - The connections in this case included: TCML was a Canadian corporation having its head office in B.C.; the site of the smelter was in B.C.; the insurers had obvious connections with B.C.; the insurance policies were purchased largely in B.C. or through B.C. brokers; and the B.C. coverage actions included three claims or potential claims that TCML had not sued on, and could not sue on, in Washington State - The parties would reasonably have expected that since the policies covered global risks, they would be interpreted according to B.C. law, rather than the law of the site of the particular damage in question in each case - The Supreme Court of Canada dismissed TCML's appeal - The chamber's judge considered all the relevant factors under s. 11 of the Act - Those factors supported his decision to refuse to stay the actions - While the court was sympathetic to the difficulties presented by parallel proceedings, the desire to avoid them could not overshadow the objective of the forum non conveniens analysis, which was to ensure, if possible, that the action was tried in the jurisdiction that had the closest connection with the action and the parties - See paragraphs 32 to 38.

Conflict of Laws - Topic 7284

Contracts - Jurisdiction - Forum conveniens - [See Conflict of Laws - Topic 7245 ].

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - [See Conflict of Laws - Topic 7245 ].

Conflict of Laws - Topic 9201

Practice - General - Comity - General - [See first and second Conflict of Laws - Topic 1664 ].

Conflict of Laws - Topic 9281

Practice - Stay of proceedings - General - [See Conflict of Laws - Topic 7245 ].

Cases Noticed:

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 22].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 22].

472900 B.C. Ltd. et al. v. Thrifty Canada Ltd. (1998), 116 B.C.A.C. 233; 190 W.A.C. 233; 168 D.L.R.(4th) 602 (C.A.), dist. [para. 26].

Westec Aerospace Inc. v. Raytheon Aircraft Co. (1999), 122 B.C.A.C. 18; 200 W.A.C. 18; 67 B.C.L.R.(3d) 278; 1999 BCCA 243, dist. [para. 26].

Ingenium Technologies Corp. v. McGraw-Hill Companies Inc. (2005), 214 B.C.A.C. 126; 353 W.A.C. 126; 49 B.C.L.R.(4th) 120; 2005 BCCA 358, dist. [para. 26].

Statutes Noticed:

Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, sect. 11 [para. 14].

Authors and Works Noticed:

Black, Vaughan, and Swan, John, Concurrent Judicial Jurisdiction: A Race to the Court House or to Judgment? (2008), 46 C.B.L.J. 292, generally [para. 39].

Uniform Law  Conference  of  Canada - Commercial Law Strategy (2005) (2008 Looseleaf Update), pp. 3, 11 [para. 22].

Counsel:

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.

Solicitors of Record:

Lawson Lundell, Vancouver, B.C., for the appellant;

Nicholl, Paskell-Mede, Toronto, Ontario, for the respondent, Lloyd's Underwriters;

Alexander Holburn Beaudin & Lang, Vancouver, B.C., for the respondent, Seaton Insurance Company;

Branch, MacMaster, Vancouver, B.C., for the respondent, Lombard General Insurance Company of Canada.

This appeal was heard on November 17, 2008, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Charron and Rothstein, JJ., of the Supreme Court of Canada. McLachlin, C.J.C., delivered the following reasons for judgment for the court in both official languages on February 20, 2009.