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CCIJ frequently intervenes strategically in cases that have the potential to impact our work. On occasion, the cases do not deal directly with torture or other human rights violations but raise important legal issues that might affect the ability of survivors to seek justice. In Van Breda/Charron, the Supreme Court of Canada heard two consolidated cases concerning Ontario residents who were killed or injured while on vacation in Cuba. For CCIJ, the key issue was the ability of Canadian courts to hear claims arising from actions committed in other countries.
The Supreme Court of Canada granted CCIJ permission to intervene in the case along with Amnesty International and Canadian Lawyers for International Human Rights (CLAIHR). The key issue was the ability of Canadian courts to hear claims arising from actions committed in other countries. Many survivors are unable to seek justice in the countries where the abuses occurred because they would be at risk of violence or death or because the judicial systems in those countries are unable or unwilling to process such claims. In those situations, Canadian courts may be the forum of last resort for survivors.
In Van Breda, the Ontario Court of Appeal recognized the “forum of necessity” doctrine to be part of the law of Ontario. Justice Sharpe explained, “The forum of necessity doctrine recognizes that there will be exceptional cases where, despite the absence of a real and substantial connection [to Ontario], the need to ensure access to justice will justify the assumption of jurisdiction…. 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.” Van Breda v. Village Resorts Limited, 2010 ONCA 84
In March 2011, CCIJ presented arguments before the Supreme Court, saying that the Court should explicitly adopt the forum of necessity doctrine and define it in a way that permits Canadian courts to hear civil claims relating to torture, war crimes and other severe human rights violations that occurred in other countries. Although there would have to be some connection to Canada (for example, the survivor now lives in Canada), this result would avoid a denial of justice in cases in which a survivor cannot safely file a case in the country where the abuses were committed.
The Supreme Court issued its judgment in April 2012. While addressing the primary issue of private international law, the court decided not to address the issue of forum of necessity, thereby leaving intact Justice Sharpe’s positive language from the Court of Appeal.
CCIJ was represented pro bono by Dr. François Larocque of the University of Ottawa, Mark Power and Lauren Wihak (then of Heenan Blaikie LLP), and Michael Sobkin.