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Hunt v. Lac D'Amiante du Québec. [1993] 4 S.C.R. 289
Published online by Cambridge University Press: 27 February 2017
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- International Decisions
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- Copyright © American Society of International Law 1994
References
1 R.S.Q. ch. D–12.
2 This history was reviewed by La Forest, J., in Hunt, [1993] 4 S.C.R. 289, 304–05 [hereinafter 4 S.C.R.]: “The [Quebec Act], like its counterpart in Ontario upon which it was patterned, was enacted, we were told, as a defence to the extraterritorial reach of United States antitrust legislation and perhaps other forms of foreign judicial interference.” Here, it may be noted that even the United States has enacted blocking legislation to address foreign boycotts against countries friendly to it. See 50 U.S.C. app. §2407 (1988) and the regulations thereunder.
3 The Ontario statute is the Business Records Protections Act, R.S.O. ch. B.19 (1990).
4 See, considering the Quebec Act, Central Wesleyan College v. W. R. Grace & Co., 143 F.R.D. 628, 644–46 (D.S.C. 1992); Snowden v. Connaught Lab., Inc., 138 F.R.D. 138, 141 (D. Kan. 1991); Lyons v. Bell Asbestos Mines, Ltd., 119 F.R.D. 384, 386–90 (D.S.C. 1988); Petruska v. Johns-Manville, 83 F.R.D. 32, 35–36 (E.D. Pa. 1979); American Indus. Contracting v. Johns-Manville, 326 F.Supp. 879 (W.D. Pa. 1971); and considering the Ontario statute, Re Uranium Antitrust Litigation, 480 F.Supp. 1138, 1143, 1145–48 (N.D. 111. 1979); Vanity Fair Mills v. T. Eaton Co., 133 F.Supp. 522, 529 (S.D.N.Y. 1955).
5 R.S.C. ch. F–29, §5 (1985). In Rivendell Forest Prod. v. Canadian Forest Prod., 810 F.Supp. 1116, 1119 (D. Colo. 1993), the court decided that it did not have jurisdiction over the Canadian defendant, noting in passing that discovery would be difficult because “[i]t is apparent that extensive third-party discovery must be conducted under the [Federal Act].” However, in connection with U.S. litigation over an international uranium cartel, the Supreme Court of New Mexico was less impressed with another Canadian federal blocking regulation. See United Nuclear Corp. v. General Atomic Co., 629 P.2d 231, 269 n.58 (1980), cert, denied, 451 U.S. 901 (1981).
6 Federal Act, supra note 5, §5(1)(a).
7 Id. §5(1)(b). Section 3 of the Federal Act provides that the federal Attorney General may (without the concurrence of the Minister for Foreign Affairs) specifically impose an order prohibiting or restricting the production of records and the giving of evidence in foreign legal proceedings.
8 The maximum penalty if the person is found guilty on summary conviction is a fine not exceeding Can. $5,000 and/or imprisonment for a term not exceeding two years.
9 Foreign Extraterritorial Measures (United States) Order, 1992, SOR/92–584 §§3–4 (federal governmental regulation). See also Canadian Government Issues Order Blocking Cuban Democracy Act Expansion, 9 Int’l Trade Rep. (BNA) 1758 (1992).
10 For instance, §17(1) of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. ch. 30 (Supp. 4, 1985), which implements Canada’s criminal mutual legal assistance treaties (including one with the United States), gives the federal Attorney General the discretion to approve a foreign state’s request to obtain evidence through an order of a judge of a Canadian court. Section 18(1) provides that the judge “may” make an order where he or she is satisfied that there are reasonable grounds to believe that the foreign state has jurisdiction and that evidence of the commission of the offense will be found in Canada. The Canada-United States MLAT is being used increasingly by the Canadian Bureau of Competition Policy (CBCP) and the U.S. Antitrust Division of the Justice Department in cooperative antitrust investigations. See Harry Chandler, Deputy Director (Criminal Matters) CBCP, Getting Down to Business: The Strategic Direction of Criminal Competition Law Enforcement in Canada, Notes for an Address 8 (Mar. 10, 1994) (on file with the author).
11 In connection with U.S. antitrust litigation over an international uranium cartel, the Canadian Supreme Court rejected letters rogatory from two U.S. district courts to compel production of documents located in Canada, at least in part because of Canadian regulations that prohibited such production without the consent of the Minister of Energy, Mines and Resources or otherwise without a requirement to do so “by or under a law of Canada.” Gulf Oil Corp. v. Gulf Oil Canada Ltd., [1980] 2 S.C.R. 39, 51–52.
12 However, as explained above, the Quebec Act would be violated even if a court had not made an order.
13 Indeed, in other asbestos litigation in the 1980s, the then Quebec Attorney General, a minister in the separatist government of the Parti Québecois, had actually applied to the Quebec provincial court for an order under §4 of the Quebec Act, notably against one of the respondents in the present case, Lac d’Amiante du Québec Ltée.
14 Ultimately, the Court held that it did not need to rule on this ground in order to grant Mr. Hunt’s appeal.
15 Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077.
16 4 S.C.R. at 310 (emphasis added).
17 Id. at 308.
18 Id.
19 Id. at 309–10.
20 Id. at 320.
21 Id. at 321.
22 [1990] 3 S.C.R. 1077.
23 4 S.C.R. at 321–22.
24 [1990] 3 S.C.R. at 1098.
25 4 S.C.R. at 323 (emphasis added).
26 Id. at 327–28. Here, the Court could easily have referred as well to the earlier litigation over an international uranium cartel in which the U.S. parent of a Canadian subsidiary was held liable for a multimillion-dollar default judgment, in part because of the subsidiary’s compliance with Canadian federal blocking regulations. See generally United Nuclear Corp. v. General Atomic Co., 629 P.2d 231 (1980).
27 4 S.C.R. at 331. In a number of the U.S. cases cited at note 4 supra, U.S. courts held that provinces were not entitled to benefit from the principles of comity under international law. See Central Wesleyan, 143 F.R.D. at 644, and Lyons, 119 F.R.D. at 388.
28 4 S.C.R. at 332. Recently, in Arrowmaster Inc. v. Unique Forming Ltd., 17 O.R.3d 407, 411 (Gen. Div. 1993), a court applied Morguard in recognizing a judgment of a U.S. district court. If the comity analysis of Morguard can be thus applied, so presumably can the analysis of Hunt regarding the use of blocking statutes to thwart legal proceedings in foreign jurisdictions, in appropriate circumstances.
29 Id. at 313–14.
30 Morguard, [1990] 3 S.C.R. at 1102.
31 113 S.Ct. 2891 (1993); see also David G. Gill’s note on the case, 88 AJIL 109 (1994).