Comity and Parallel Foreign Proceedings: A Reply to Black and Swan

Abstract

Lloyd's Underwriters v. Cominco Ltd., is a potentially seminal case, currently pending before the Supreme Court of Canada. The case involves the issue of whether Canadian courts should stay litigation in the face of duplicative foreign proceedings. This reply responds to Vaughan Black's and John Swan's comment on the Lloyd's case, which was published in volume 46 of the Canadian Business Law Journal.

The reply argues that although Black and Swan have important insights into judgment enforcement when competing, inconsistent decisions exist, their analysis too readily skips over the first-to-file rule and underestimates the costs of reactive litigation. Canadian courts should embrace a nuanced version of the first-to-file rule because avoiding the costs of duplicative, reactive litigation is in Canada's best interest. The reply argues that Canadian courts should treat the issues of parallel proceedings and judgment enforcement symmetrically. Once a Canadian court finds that the same case has already been filed in a court of appropriate adjudicatory jurisdiction (consistent with Canadian jurisdictional principles), it should stay its proceedings unless the party opposing the stay can demonstrate that a clear injustice would occur if the stay is granted. The court should enter a stay, even if a Canadian province has greater connections with the dispute, so long as the foreign forum has real and substantial connections. It concludes by arguing that the Canadian Supreme Court would be wise to reverse the lower courts' decisions and find that the wastes inherent in duplicative litigation favors a stay in the Lloyd's case.

Keywords: lloyd's, cominco, teck, trail, vaughan black, john swan, comity, parallel, reactive litigation, duplicative, concurrent, transnational, enforcement, foreign judgments, morguard, Canada, pakootas, concurrent, beals, westec, amchem, forum non conveniens, lis pendens, lis alibi pendens, Canada

JEL Classification: K00, K10, K19, K20, K29, K30, K33, K40, K41, K42, N40, N70