Problem of Parallel Actions: The Softer Alternative?

Abstract

The genius of the common law conflicts jurisdictional rules might be said to be their flexibility. Unsurprisingly, Canadian common law courts, including the Supreme Court, have been unwilling to create any arbitrary or 'bright line' rules for dealing with parallel actions.

It is not impossible, however, for the judicial branch to introduce more certainty, and hence more order, into the problem of parallel actions without sacrificing any fairness.

This article endorses, discusses, and develops the approach that the British Columbia courts seemed to be moving towards to resolve this problem before the enactment of the Court Jurisdiction and Transfer of Proceedings Act. The approach was put to the Supreme Court of Canada in Teck and identified by it as the "softer alternative" but, instead of dealing with the argument as put, the Court read it up into an argument for a bright line approach that required blind deference to a foreign court's assertion of jurisdiction which amounted to a first to file rule. The Court rightly rejected such a bright line approach.

A local court using the softer alternative approach would defer to a foreign court's decision to retain and exercise jurisdiction and would, therefore, stay the parallel local action provided that two conditions are satisfied: first, the foreign court's decision must be reasonably consistent with the local doctrine of forum non conveniens; and second, the stay of the local action in favour of the parallel foreign action must not work an injustice on the local plaintiff.

Admittedly, this proposed approach is available in only that portion of the growing volume of parallel actions in which the foreign court has already made a decision about its own jurisdiction. Significantly, the proposed approach does not require complete deference to the foreign decision if considerations of fairness and justice persuade the local court to let the local action continue. Thus the order introduced into the problem of parallel actions will not satisfy those who prefer absolutely certain rules (assuming such phenomena exist) but it will modify the complete uncertainty resulting from the decisions in Teck and Lepine.

Keywords: Canada, Conflict of Laws, International private law, Parallel actions, Jurisdiction