Club Resorts Ltd. v. Van Breda,
2012 SCC 17

Links: Factum [PDF] | Judgment [website]


Van Breda concerned two Ontario residents who were injured while on vacation in Cuba. CLAIHR was granted intervener status together with Amnesty International and the Canadian Centre for International Justice (CCIJ).

At issue was whether the Court could hear a case in which the defendant was located outside of Canada and the injuries suffered by the defendant occurred outside of Canada.. Issues of jurisdiction are vitally important to CLAIHR’s objectives as findings on jurisdiction can affect whether victims of human rights abuses committed abroad can use Canadian courts to hold perpetrators accountable for the harm suffered. A recognition of “necessity jurisdiction” would enable Canadian courts to hear proceedings where there are no other appropriate jurisdictions. In the human rights context, the forum of necessity would allow for plaintiffs who cannot, without undertaking great physical risk, return to the country where the harm occurred, to institute civil proceedings against the perpetrators in Canadian courts.

The Ontario Court of Appeal recognized the forum of necessity in limited cases. Justice Sharpe explained the doctrine as follows:

The forum of necessity doctrine recognizes that there will be exceptional cases where, despite the absence of a real and substantial connection, the need to ensure access to justice will justify the assumption of jurisdiction.  The forum of necessity doctrine does not redefine real and substantial connection to embrace “forum of last resort” cases; it operates as an exception to the real and substantial connection test.  Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction.  In my view, the overriding concern for access to justice that motivates the assumption of jurisdiction despite inadequate connection with the forum should be accommodated by explicit recognition of the forum of necessity exception rather than by distorting the real and substantial connection test.

CLAIHR and its partners sought to have necessity jurisdiction recognized by the Supreme Court of Canada. They were represented by Dr. François Larocque of the University of Ottawa, Michael Sobkin, and Mark C. Power and Lauren J. Wihak of Heenan Blaikie LLP. Oral arguments were heard on March 21, 2011.  CLAIHR urged the Court to explicitly recognize the forum of necessity and define it in such a manner so as to permit Canadian courts to hear civil claims relating to torture, war crimes, and other human rights abuses which occurred in other countries. In this way, survivors now living in Canada could hold their abusers accountable for actions which occurred in a country that had since become inaccessible to them.

In the Supreme Court’s decision, released April 18, 2012, Justice LeBel, writing for the Court, dismissed the appeal. The Court provided an extensive analysis of the private international law issues raised in the appeal, but did not address the doctrine of necessary jurisdiction. Therefore, the decision of the Ontario Court of Appeal with respect to this issue remains good law.

You can watch the webcast of the oral argument here. CLAIHR’s presentation begins at 39:40.