Van Breda Intervention at the SCC
The Supreme Court of Canada granted leave to appeal in two cases from the Ontario Court of Appeal concerning two Ontario residents who were injured or killed while on vacation in Cuba in the case of Club Resorts v. Van Breda. The court heard arguments on the ability of a court to hear a case in which the defendant and the injuries were located outside of Canada. CLAIHR, along with Amnesty International and the Canadian Centre for International Justice (CCIJ) were given intervenor status together to make arguments at the Supreme Court. This case was of interest to CLAIHR, CCIJ and Amnesty as it raised the issue of the forum of necessity jurisdiction, which is vitally important for victims of human rights abuses abroad who wish to commence legal actions in Canada. This jurisdiction is an emerging concept in private international law where litigants may bring actions in tort proceedings involving foreign defendants and extraterritorial events. The recognition of this jurisdiction would allow Canadian courts to hear proceedings that could not possibly have been instituted elsewhere. This jurisdiction provides potential litigants with greater access to justice for crimes where legal recourse has traditionally been virtually impossible such as civil claims relating to egregious human rights violations. With the recognition of the forum of necessity, Canada would allow plaintiffs who cannot return to the country where the harm occurred, without risking their lives or further injury, to institute civil proceedings against the perpetrators in Canadian courts.
The Ontario Court of Appeal recognized this jurisdiction in limited cases and CLAIHR along with the CCIJ and Amnesty International are seeking confirmation of this approach. While the Van Breda case does not involve human rights issues, it raises this important issue of jurisdiction that could be a very important tool in assisting victims of human rights violations to find justice in Canada.
CLAIHR, together with the Canadian Centre for International Justice (CCIJ) and Amnesty International, were granted intervenor status by the Supreme Court of Canada in the Van Breda case and made oral arguments at the Supreme Court on March 21, 2011. CLAIHR urged the Supreme Court to confirm the decision of the Ontario Court of Appeal in recognizing the forum of necessity jurisdiction so that victims of international crimes such as torture, war crimes and other serious international offences can seek justice through the civil courts in Canada so long as the plaintiff has some connection with the Canadian jurisdiction of the court.
CLAIHR is represented pro bono by Dr. François Larocque of the University of Ottawa and Mark Power of Heenan Blaikie LLP.