Bruce Broomhall is a Professor at the Department of Law of the University of Quebec at Montreal, teaching mainly international and Canadian criminal law. He thanks François Larocque, Mark Arnold and others for their input.
On 18 April 2012, the Supreme Court of Canada issued a trio of decisions promising to have an important impact on how Canadian law responds to attempts at civil recovery for international law violations occurring abroad, or partly abroad.
The cases are based on issues of classic private international law, not human rights or public international law. Club Resorts Ltd. v. Van Breda dealt jointly with two cases (of plaintiffs Van Breda and Charron) asking whether an Ontario court had and should exercise jurisdiction over civil claims arising from Cuban sun vacations in which severe personal injury (Van Breda), death (Charron) and related damages were claimed. The importance of Van Breda lies in the test that the Supreme Court lays out for determining the existence of jurisdiction in a case with trans-boundary elements. The accompanying Éditions Écosociété Inc. v. Banro and Breedan v. Black are actions in defamation that examine primarily (and Van Breda also examines) the issue whether jurisdiction, once recognized, should in fact be exercised, or whether it should instead be declined on grounds of forum non conveniens. This posting looks at the former question.
Van Breda presents an assessment of the ‘real and substantial connection’ required for the exercise of civil jurisdiction under the exclusive competence over “Property and Civil Rights” that Canada’s Constitution Act 1867 (at s.92(13)) accords to the Provinces and their courts. As the Court points out, this test has been the source of confusion to litigants and judges alike. It is both a principle of constitutional law used to prevent ‘jurisdictional overreach’ by any given province (a question left aside in Van Breda), as well as a principle of private international law, typically for purposes of international jurisdictional coordination (the focus of the decision) (paras. 22ff.). [One might add that it is also the concept set out in the seminal Libman case for determining the scope of territorial jurisdiction for criminal law purposes.] The Court’s aim in reformulating the Ontario Court of Appeal’s decision in the instant case was to encourage predictability in jurisdictional determinations based on the test and so to restrict case-by-case variability. The Court identifies four connecting factors that raise a rebuttable presumption that a court has jurisdiction over a given case: that the defendant is (1) domiciled or resident in or (2) carries on business in the forum province, or (3) the tort was committed or (4) a contract connected with the dispute was made there (para. 90). The Court allows (at para. 91ff.) for courts to develop additional connecting factors in accordance with strict criteria. Nonetheless, where no listed or new presumptive connecting factors are present, “a court should not assume jurisdiction on the basis of the combined effect of a number of non-presumptive connecting factors” (para. 93).
This approach to the ‘real and substantial connection’ test seems certain to reduce the space for future extraterritorial civil cases – provided they are subject to the test (see below). Two prominent cases based on human rights abuses committed abroad illustrate the point. In Bouzari, the Ontario Court of Appeal decided that a claim of torture committed in Iran against an Iranian (but later Canadian) citizen was not per se inadmissible but was subject to the ‘real and substantial connection’ test. That Court then (at paras. 36-38) showed some willingness to consider Bouzari’s present ties as a resident of the forum, as well as the absence of other accessible fora, in applying this test. It ultimately decided that it need not decide the matter, since Canada’s State Immunity Act barred jurisdiction over the Iranian officials named as defendants. In Kazemi (2011), the Quebec Superior Court applied the same Act and so blocked an action brought by the estate of an Iranian-Canadian photojournalist who had been tortured, sexually assaulted and killed by Iranian officials in Iran. Interestingly, the Court decided that her son’s action against the same Iranian State defendants should proceed to trial, since the ‘psychological trauma’ he invoked had occurred in Quebec and prima facie might satisfy the Act’s requirement of ‘bodily injury’ (‘préjudice corporel’ in its more liberal French text) as a precondition to invoking the ‘territorial tort’ exception to State immunity (a question to be determined on the merits). Bouzari has recently been revived before the Ontario courts in modified form, while Kazemi is currently on appeal. To the extent both are based on the plaintiff’s presence in the forum province (and I return to this below), Van Breda (at para. 86) makes them inadmissible.
One effect of Van Breda’s exclusive reliance on the listed criteria (and any new ones) will be to shift efforts to development Canada’s extraterritorial human rights litigation into the area of ‘forum of necessity,’ which the Supreme Court expressly refrained from discussing. Yet the Court hints (at para. 86) that the fact of the plaintiff’s presence in the forum jurisdiction might have some importance in the context of this doctrine (where the absence of other available fora would also be front-and-centre).
It therefore looks like the unfinished business of the 2004 Bouzari appeals decision will be taken up in this connection – and perhaps sooner than expected. In January 2012, the Quebec Court of Appeal refused jurisdiction to initiate a class action against Anvil Mining Ltd. (in French) for its alleged complicity in war crimes and crimes against humanity committed by the Armed Forces of the Democratic Republic of the Congo during a 2004 massacre of villagers near the company’s mine in Katanga Province. The Court held that the plaintiff Canadian Association against Impunity had failed to establish a sufficient connection between the defendant company and Quebec at the time of the events, and had also failed to satisfy requirements for invoking the doctrine of ‘forum of necessity.’ The plaintiffs have applied for leave to appeal to the Supreme Court of Canada.
Whether an eventual Supreme Court decision will open the door wide, leave it slightly ajar, or slam it shut remains to be seen. The prospect of a decision in this area nonetheless appears fraught with peril for the Supreme Court justices. ‘Forum of necessity’ would not go up to the Supreme Court with the same wealth of legislative and jurisprudential practice as well as academic comment that informed the Court’s work in Van Breda. Too wide a decision might do little but engender a pile of unenforceable default judgments, while too narrow a ruling would entail a denial of justice across a wide area. (We should recall that the international law over which extraterritorial jurisdiction might be exercised is not restricted to human rights and international crimes, but might just as well involve environmental and business regulation as well as other areas, as Jacques Hartmann’s post reminds us). Either result would ultimately bring the Court and the legal process into disrepute. The best we might hope for in an early Court decision is one that fixes some guideposts without foreclosing or presuming future developments. Contrary to its approach in Van Breda, the Court might be wise at this stage to put less emphasis on predictability and more on judicial discretion and case-by-case fairness considerations.
Putting ‘forum of necessity’ aside, and absent the defendant’s consent, the strictures of Van Breda stand to be circumvented in at least three ways. First, broad interpretations of the four listed criteria can be fostered and relied upon. The Court acknowledges that the scope of its criteria will be an issue, emphasizing that “[t]he notion of carrying on business requires some form of actual, not only virtual, presence in the jurisdiction….” Moreover, while the Court acknowledges that identifying the situs of a tort will pose a challenge at times, it must mean more than the fact that “damage is sustained at a particular place,” since “this risks sweeping into that jurisdiction claims that have only a limited relationship with the forum. An injury may happen in one place, but the pain and inconvenience resulting from it might be felt in another country and later in a third one” (paras. 84-89). This might be read as another strike against Kazemi, which allowed the son’s claims to go forward on the grounds that the alleged harm had have taken place in Canada, and in Bouzari the Court took note of the ongoing effects in Ontario of injuries suffered in Iran. A second way to evade the Van Breda test would be through broader provincial laws, although these (like additional presumptive criteria beyond the ‘Van Breda four’) would have to survive scrutiny under the constitutional wing of the ‘real and substantial connection’ test. This was not dealt with in Van Breda, and the judgment’s relevance for the constitutional test will have to be clarified in future.
Thirdly and finally, one might encourage the adoption of federal legislation. This has already been accomplished by the current Government of Canada within the narrow ambit of its Justice for Victims of Terrorism Act (discussed on EJIL:Talk! in the posts of Joanna Harrington and René Provost). It has also been proposed on a wider scale through a private members’ bill coming from opposition MP Peter Julian, whose Bill C-323 (introduced in the last then re-introduced in the present Parliament) would give the Federal Court of Canada jurisdiction over claims brought by non-Canadians for remedies related to “a violation of international law or a treaty to which Canada is a party” that occurs outside Canada. This latter wording, of course, means either very little – under a restrictive view of how far international law directly applies to the conduct of individual legal or natural persons – or a great deal – under a view like that of the Draft Norms on Transnational Corporations and Human Rights that Special Representative John Ruggie made such a point of declaring dead. Canada’s current Conservative government will ensure that C-323 stays on the back-burner. Both initiatives are often said to be vulnerable to constitutional challenge for being within provincial jurisdiction over “Property and Civil Rights.” Detailed argument to this effect is scarce so far.
Two points should be noted in closing. First, in speaking of civil actions in Van Breda, the Supreme Court of Canada does not distinguish actions based on international law from others, and does not mention the various forms of jurisdiction recognized in criminal law (passive personality, universal, etc.). ‘Universal civil jurisdiction’ as a category would seem to be entirely beside the point, and tort actions for damages flowing from relevant violations of international norms unproblematic in principle, provided the Van Breda criteria are met. The questions raised in Barry Sander’s post on universal civil jurisdiction are therefore scarcely visible in the Canadian jurisprudence. It will be interesting to see whether the briefs responding to the United States Supreme Court’s rather open-ended invitation, and supporting extraterritorial civil jurisdiction, raise the possibility of conditioning its use through ‘filtering’ doctrines such as immunity, forum non conveniens, ‘real and substantial connection,’ ‘forum of necessity,’ and so on.
Finally, however restrictive the Van Breda presumptions might be, they leave open important possibilities in one area of lively debate in Canada – that of the responsibility of extractive companies for alleged involvement in violations of international law abroad. In Van Breda, the Supreme Court ruled that “a defendant may always be sued in a court of the jurisdiction in which he or she is domiciled or resident (in the case of a legal person, the location of its head office)” (para. 86). Anvil Mining Ltd. may have had its head office in Australia until recently acquired by a subsidiary of China Minmetals, but a great many extractive companies active in so-called ‘zones of weak governance’ around the world are headquartered in Canada. Such cases, if they develop, will not be examples of pure ‘universal civil jurisdiction.’ But how many really are?