Clearly More Appropriate
Quebec's courts have adopted an approach that, although basically identical to that of the common law courts, is subject to the indication in art. 3135 [of the Code civil du Québec, L.Q. 1991, c. 64] that forum non conveniens is an exceptional recourse.
Regarding the burden imposed on a party asking for a stay on the basis of forum non conveniens, the courts have held that the party must show that the alternative forum is clearly more appropriate. The expression “clearly more appropriate” is well established ... On the other hand, it has not always been used consistently and does not appear in [the proposed Uniform Court Jurisdiction and Proceedings Transfer Act (“CJPTA”)] or any of the statutes based on the CJPTA, which simply require that the party moving for a stay establish that there is a “more appropriate forum” elsewhere. Nor is this expression found in art. 3135 of the Civil Code of Québec, which refers instead to the exceptional nature of the power conferred on a Quebec authority to decline jurisdiction: “... it may exceptionally and on an application by a party, decline jurisdiction ...”
The use of the words “clearly” and “exceptionally” should be interpreted as an acknowledgment that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed. The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states ... A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation.
Van Breda v. Village Resorts Ltd. |
2012 CarswellOnt 4269 (S.C.C.) at para. 107–109 |