Bil’in (Village Council) c. Green Park International Inc: an Overeaching Assertion of Jurisdiction?

In his detailed analysis of Bil’in (Village Council) c. Green Park International Inc, James Yap argues that the plaintiffs will have a great chance of overturning Cullen J.’s decision to decline jurisdiction. Since our own Alexandra Dodger introduces this intricate case very well, I direct those who are unfamiliar with it to her entry. While I welcome the decision for its potential to end the impunity with which Canadian corporations operate overseas, I believe that the Court of Appeal would not overturn Cullen J.’s decision if it did hear the matter. I agree with the outcome because the connection between the dispute and Québec is far too superficial for a Québec court to legitimately claim jurisdiction over the action. However, the issues raised by the application of forum non conveniens to this case should make us think twice before dismissing the plaintiffs’ action as an abusive or exaggerated assertion of jurisdiction.

The main problem with bringing this action in Québec is that its connection to Québec is extremely weak. Pursuant to article 3134 of the CCQ, the court took jurisdiction over the action because it found that the defendants were domiciled in Québec (Bil’in, para. 207). While the fact that the defendant has its domicile in Québec might normally be determinative in establishing jurisdiction, such a factor should be inconclusive in this instance. As Cullen himself later points out

this lone and apparent connection is merely superficial: the Corporations have no assets in Québec, are alter egos for another corporation which itself has no assets in Québec and Defendant Laroche [the current director] has no personal involvement in the Bil’in project … (para. 312)

The defendant corporations were only incorporated in Québec for tax reasons (para. 215). It is highly questionable to use the place of a legal person’s incorporation as the sole basis of asserting jurisdiction over an extra-contractual liability action that occurred entirely outside of Québec – especially if that corporation has no offices in Québec and does not carry out any activities there. Alas, article 3134 of the CCQ clearly accepts domicile as a basis for establishing jurisdiction, and as far as I can discern, the default rule in North America is that a legal person’s place of incorporation is its domicile. Nonetheless, I find it to be quite surprising that the defendants did not try to find some creative way of challenging the use of domicile to assert jurisdiction.

In light of the superficial nature of the connection to Québec, the Plaintiff’s action should have been dismissed outright for a lack of jurisdiction. Since he strictly followed article 3134, Cullen J. had no choice but to raise his legitimate concerns about the strength of the connection between the dispute and Québec in his forum non conveniens analysis. Article 3135 of the CCQ, which entrenches this private international law doctrine, stipulates that

Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.

It is perhaps best thought of as a tool that seeks to avoid injustice by providing a defendant with the ability to counter exaggerated, abusive, or exorbitant assertions of jurisdiction. While courts have consistently emphasized its exceptional nature, scholars have repeatedly critiqued courts for applying this doctrine too liberally.[1] It is indeed still quite difficult to determine when a situation warrants the application of this doctrine.

While the Québec court should have definitely refused to assert its jurisdiction, I do not believe that this matter was an instance that clearly warranted the use of forum non conveniens. In his analysis of which court is better positioned to decide the matter, Cullen J. employed the ten factors affirmed in Spar Aerospace Ltd. v. American Mobile Satellite Corp.[2] He correctly assessed that the majority of these factors – notably the location of assets, evidence, and the parties – weigh in favor of an Israeli court.

However, if the dispute’s connection to Québec was somehow more substantial, a strong argument might be made that Israel is not even a viable forum to hear the matter. As James Yap astutely argues, the potential that the war crime, which forms the basis of this action, might not even be justiciable in Israel could “lead to the grossly unjust result of leaving the plaintiff[s] absolutely no forum in which to pursue [their] claim”. Since the entire point of forum non conveniens is to assess which forum is better positioned, it does indeed seem logical to determine whether there is an available, alternative forum. I fully support Talpis and Kath’s recommendation that before assessing  forum non conveniens, a preliminary requirement should be that the foreign forum is indeed adequate and competent to hear the claim.[3] While judges must surely address this underlying issue before they write their decision, a clear presentation of their reasoning on this issue would go a long way to avoid a confusing decision when the viability or impartiality of the forum is contestable.

Provided that there was a substantial connection to Québec, the central issue in this case is really whether a court should decline jurisdiction where war crimes are not justiciable in the alternative forum. Yap convincingly argues that a Canadian court should accept jurisdiction due to the gravity of war crimes, which are universally recognized as severe human rights violations. Some scholars even argue that forum non conveniens should never apply to human rights cases because human rights “supersede [the] convenience of either the parties or the forum”.[4] Indeed, if this case were heard by the Court of Appeal, I hope that these arguments would be directly addressed.

While I am admittedly not entirely familiar with how to go about doing so, I am surprised that the plaintiffs did not try to argue that Québec was the forum of necessity. Article 3136 of the CCQ provides that

Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required.

The plaintiffs might have argued that Québec has a ‘sufficient connection’ with the dispute due to the grave nature of war crimes, which Canada has recognized with its enactment of the Crimes Against Humanity and War Crimes Act.

Nonetheless, even if the circumstances were different or some of these arguments were accepted, I am not sure whether Québec would be the appropriate forum to hear such a case. While something must be done to address the impunity with which Canadian corporations operate overseas, do we really want a Canadian court to rule on an action that asks it to determine whether a foreign state has committed a war crime? In the end, I suspect that the overwhelming majority of judges would find a way to dismiss such an action as an overreaching assertion of jurisdiction despite the fact that there are legitimate reasons for considering otherwise.

[2] Spar, ibid at para. 71.

[3] Talpis and Kath, supra note 1 at paras. 168-169.

[4] Ibid, at para. 178, referring to K.L. Boyd, “The Inconvenience of Victims: Abolishing Forum Non Conveniens in U.S. Human Rights Litigation”, 39 Va. J. Int’l L. 41 (1998).

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