Amnesty International was represented in this case by François Larocque, Michael Sobkin, and Mark Power.
WHAT IS THIS CASE ABOUT?
This case concerned two Canadians, Morgan Van Breda and Claude Charron, who suffered terrible injuries – leading to death in Mr. Charron’s case – while vacationing in Cuba. Mr. Van Breda and Mr. Charron’s family brought a civil action in Ontario against a number of parties, including Club Resorts Ltd, the company that managed the two hotels where the men were staying when the accidents occurred. Club Resorts Ltd. sought to have the action dismissed, arguing that Ontario courts lacked jurisdiction to hear the cases or, alternatively, that Cuban courts, rather than Ontario courts, were the more appropriate forum in which to hear the cases (the doctrine of forum non conveniens).
The motions courts needed to determine whether the plaintiffs had a “real and substantial connection” to Ontario sufficient to establish jurisdiction in Ontario over the cases. The motions judges in these cases both found that Ontario courts had jurisdiction and are the more appropriate forum to hear the cases. The Court of Appeal for Ontario dismissed the appeals of the motions court judgments. In addition, the Court of Appeal for Ontario noted the emergence of the doctrine of “forum of necessity” in Canadian and European law recognizing that there can be exceptional cases where overriding considerations of fairness and the need to ensure access to justice will justify the assumption of jurisdiction in the absence of a real and substantial connection. Club Resorts Ltd. appealed the Court of Appeal’s judgment to the Supreme Court of Canada.
AMNESTY INTERNATIONAL’S INTERVENTION
Amnesty International co-intervened before the Supreme Court of Canada in the Van Breda case with the Canadian Centre for International Justice and Canadian Lawyers for International Human Rights. In our submissions, we argued that the Court of Appeal for Ontario’s explicit recognition of the forum of necessity doctrine is a positive development that harmonizes Ontario law with well-recognized national and international standards of jurisdiction and access to justice.
The doctrine of forum of necessity operates as an additional and discretionary ground for asserting jurisdiction in civil proceedings relating to foreign defendants and extraterritorial events when none of the traditional bases apply (i.e. consent, presence of real and substantial connection). A court may exercise this jurisdiction where institution of proceedings elsewhere is impossible or could not reasonably be required, such as, for example, in civil claims for human rights violations like torture and genocide brought by plaintiffs who cannot return to the forum where the harm occurred without risking their lives or further injury.
In our submissions, Amnesty International argued that forum of necessity is rooted in the principles of order, fairness, and comity. It promotes order and the rule of law by providing access to justice and a forum in which valid claims can be satisfactorily litigated. It also respects the requirements of fairness by preventing denials of justice to plaintiffs who have no other option but to sue in Canadian courts because of insurmountable or unreasonable impediments. Finally, when applied in exceptional cases relating to fundamental human rights protected by peremptory norms of international law (jus cogens), forum of necessity jurisdiction protects international comity.
In light of our submissions, Amnesty International asked that the Supreme Court of Canada affirm the Court of Appeal for Ontario’s recognition of the doctrine of forum of necessity.
STATUS OF THE CASE
The Supreme Court of Canada held that in order to establish a real and substantial connection, the plaintiffs must identify a presumptive connecting factor to link the cases to the forum – in this case, Ontario courts. The Court determined that the real and substantial connection must be established on the basis of presumptive objective factors. The Court provided a non-exhaustive list of presumptive factors in its judgment. Even if the plaintiffs cannot establish a real and substantial connection on the basis of presumptive factors, the Supreme Court affirmed that the forum of necessity doctrine may apply to establish jurisdiction regardless.
Court of Appeal for Ontario judgment in the Van Breda case
Amnesty International’s application to intervene before the Supreme Court of Canada in the Van Breda case
Amnesty International’s submissions to the Supreme Court of Canada in the Van Breda case
Supreme Court of Canada judgment in the Van Breda case