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deprived of security for that claim; (ii) be unable
to enforce any judgment obtained; (iii) be faced
with a time-bar not applicable in England; or (iv)
for political, racial, religious or other reasons be
unlikely to get a fair trial.
19. ZI Pompey, supra note 16 at para 21.
20. These factors included that the appellant prefers to
litigate in a familiar jurisdiction and does not bring
up the jurisdiction clause merely to seek a procedural
advantage; there are reasonable connections with
Belgium; there are Belgian and French witnesses;
any time bar which may preclude the respondents
from bringing their case in Belgium has been
waived; no security has been posted; the enforcement
of a Belgian judgment against the appellant
should present no particular difficulties; there will be
Canadian and American witnesses in these proceedings;
the Tribunal de commerce in Antwerp conducts
its proceedings in Flemish and decides cases on the
basis of documents and statements, a procedure precluding
witnesses and cross-examination; and there
may be more delay in Belgium than in Canada,
especially if there is an appeal.
21. In Club Resorts Ltd v Van Breda, 2012 SCC 17 Van
Breda, at para 110, when applying the common law
forum non conveniens doctrine, the SCC stated:
… the factors that a court may consider in deciding
whether to apply forum non conveniens may
vary depending on the context and might
include the locations of parties and witnesses,
the cost of transferring the case to another jurisdiction
or of declining the stay, the impact of a
transfer on the conduct of the litigation or on
related or parallel proceedings, the possibility of
conflicting judgments, problems related to the
recognition and enforcement of judgments, and
the relative strengths of the connections of the
22. Section 11 of the CJPTA reflects the factors from Van
Breda and also lists the “fair and efficient working of
the Canadian legal system as a whole”. And while
the SCC in Teck described s 11 as a “complete codification
of the common law test for forum non conveniens
” that “admits of no exceptions” (at para 23), in
Breeden v Black, 2012 SCC 19 the SCC described
the list of factors in s 11(2) as “non-exhaustive” (at
23. Expedition Helicopters Inc v Honeywell Inc, 2010
ONCA 351, leave to appeal ref’d 2010 SCCA No
258 Expedition Helicopters. This decision has been
cited with approval in Alberta, BC, Saskatchewan
and Nova Scotia.
24. Ibid at para 24.
25. Supra note 6 at paras 29–30.
26. Ibid at para 93.
27. In 2Source Manufacturing Inc v United Technologies
Corporation, 2017 ONSC 4409 (SCJ), the court
cited and applied Expedition Helicopters without reference
to Douez SCC. In Superior Fine Papers Inc v
Newalta Corporation, 2017 ONSC 6589 (SCJ),
after citing the factors from Expedition Helicopters,
the court stated that the “majority” decision in Douez
SCC required that it take into account the “secondary
factors” of the interests of justice and the
expense of litigating in the alternate forum. In a pre-
Douez decision, the Supreme Court of Nova Scotia
opined that the Expedition Helicopter test applies
only where the forum selection clause names a court
other than the domestic court and that when the
domestic court is the court selected, the ZI Pompey
factors should be applied: 2288450 Ontario Ltd v
Novajet, 2016 NSSC 77.
28. Supra note 6 at para 64.
29. The recent decision of the BC Court of Appeal in
Araya v Nevsun Resources Ltd, 2017 BCCA 401,
application for leave to appeal pending 2018 CarswellBC
482, illustrates that evidence going to “social”
as opposed to “adjudicative” facts may be admitted
when there is an assertion that justice will not be available
to a party in the alternate jurisdiction.
30. Douez SCC, supra note 6 at para 38.
31. This approach was confirmed in ZI Pompey, supra
32. Douez SCC, supra note 6 at para 94.
33. See Imperial Life Assurance Company of Canada v
Colmenares, 1967 SCR 443.
34. 1939 AC 277 (PC).
35. Ibid at 290.
36. Douez BCCA, supra note 5 at paras 82–84 (the
Court of Appeal did not otherwise consider the
choice of law).
37. Douez BCSC, supra note 1 at para 50.
38. Ibid at para 125.
39. Douez SCC, supra note 6 at para 70.
40. Ibid at para 166.
41. See e.g. Golden Acres Ltd v Queensland Estates Pty
Ltd, 1969 QLR 378 (Queensland SC) (a rare case
in which the choice of Hong Kong law to govern the
contract was found not to be bona fide).
42. Supra note 6 at para 59.
43. See Old North State Brewing Co v Newlands Services
Inc (1999), 58 BCLR (3d) 144 (CA); Bumper
Development Corp Ltd v Commissioner of Police of
the Metropolis, 1991 4 All ER 638 (CA); Jonathan
Harris et al, eds, Dicey, Morris and Collins on the
Conflict of Laws, 14th ed (London, UK: Sweet &
44. See e.g. Amin Rasheed Shipping Corp v Kuwait
Insurance Co, 1984 AC 50 (HL).
45. Neilson v Overseas Projects Corporation of Victoria
Ltd, 2005 HCA 54.
46. Lord Collins of Mapesbury et al, eds, Dicey, Morris
and Collins on the Conflict of Laws, 15th ed (London,
UK: Sweet & Maxwell, 2012) at 640, para 12-165
47. See e.g. Union Discount Co Ltd v Zoller, 2001
EWCA Civ 1755 (CA); Starlight Shipping Co v
Allianz Marine & Aviation Versicherungs, 2013
UKSC 70. See also Donohue v Armco Inc, 2001
UKHL 64 (three members of the House of Lords