Detroit Int’l Bridge Co. v. Government of Canada, No. 10-cv-476 (D.D.C. Jan. 14, 2015) [click for opinion]

For more than a decade, the Detroit International Bridge Company (“DIBC”) has sought permits from the United States and Canada to build a bridge across the Detroit River connecting Detroit, Michigan with Windsor, Canada. Both governments have withheld the necessary permits from DIBC, and, at the same time, have worked in consort to develop plans for a new publicly-owned bridge that would destroy the need for the bridge DIBC seeks to build. As a result, DIBC sued the government of both the United States and Canada in the District of Columbia federal district court.

DIBC seeks a declaratory judgment that it holds an exclusive franchise right under Canadian law to build and operate a bridge between Windsor and Detroit and that no one else can ever build a competing bridge. DIBC alleges that it has a “perpetual right” to operate a toll bridge between Detroit and Windsor and that this right is enforceable “as a matter of Canadian law.” DIBC also seeks a declaratory judgment that it has a franchise right to build the specific bridge for which it has requested permits in Canada. DIBC alleges that this right is not subject to Canada’s preference for a government-owned bridge and cannot be defeated or frustrated by the Canadian government’s delay in approving the bridge proposed by DIBC.

In response to DIBC’s lawsuit, Canada filed a motion to dismiss in reliance on the Foreign Sovereign Immunities Act (“FSIA”), and requesting, in the alternative, that the court stay the suit.  Canada argued that a stay was appropriate because DIBC’s wholly-owned Canadian subsidiary brought substantially the same claims in a court of competent jurisdiction in Ontario, Canada.  DIBC opposed a stay, arguing that the parties in the Canadian litigation are different: neither DIBC itself nor the government of the United States were involved in the Ontario suit.  Furthermore, DIBC argued that a stay would be prejudicial because it would delay the lawsuit indefinitely despite the fact that time is of the essence “where the parties are effectively in a race to build their respective bridges.”

The court concluded that a stay was appropriate as to DIBC’s claims against Canada. Although the United States was a not a defendant in the Canadian litigation, the court held that the parties relevant to the claims advanced against Canada—and the claims themselves—were substantially similar in both cases. Most importantly, the court deferred to principles of international comity in granting the stay, finding that Canada “has a paramount interest in adjudicating this dispute concerning matters of legal and practical significance to the nation of Canada and involving interpretations of Canadian law, in Canada.” The court explained that, “if this Court cannot extend comity to Canada, the comity principle has little vitality in our jurisprudence.”

Jacob Chervinsky of the Washington, DC office contributed to this summary.