Forum Non Conveniens

• Author: International Law Group

Re-Con Building Products Inc., is a British Columbia corporation, all of whose assets are located in that Province. It exported virtually all of its roofing products to the United States, most of them to California. It had no Certificate of Qualification, however, that would give it the right to conduct intra-state business as California law required and it lacked both office and employees in that state. A number of parties injured by one of its allegedly defective products filed a class action suit for damages against Re-Con in the California courts in September 1999.

Under various policies, Western Union Insurance Company and the Nordic Insurance Company of Canada, Re-Con's insurers, had agreed, inter alia, to defend claims for property damage caused by products made and marketed by Re-Con. The insurers were aware of Re-Con's sales to the United States. All discussions, negotiations, correspondence and representations in the original and subsequent renewals of the insurance policies took place in Vancouver.

On the other hand, the insurers were Canadian corporations which did not carry on any business in California and had no employees, offices, or agents in that state. They were also unenthusiastic about defending the class action, and made known this view to Re-Con. Re-Con then brought a declaratory judgment action (the coverage action) in California in December 1999, asking the court to determine that the insurance contracts with Re-Con imposed a duty upon the companies to defend the California class action.

In January 2000, the insurers then brought the present suit against Re-Con in the British Columbia courts for a declaration that the insurance policies with Re-Con were void ab initio. Re-Con then sought a declaration that the British Columbia court lacked jurisdiction over it or, in the alternative, for an order stating that the court would refuse to exercise any jurisdiction it might have over Re-Con.

The motions judge dismissed the application. He pointed out that parallel actions were...