Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Archive for the ‘foreign judgments’ Category

The (Near) Death of Chaining

Posted by Seva on January 19, 2009

Chaining foreign judgments is a practice of registering foreign judgments from jurisdiction to jurisdiction until you get to one that has a reciprocal enforcement of judgments relationships with your home province. Until very recently, I thought that chaining foreign judgments was a no-brainer in Canada. In fact, approximately a year ago, I posted a link to a handy table listing reciprocal jurisdictions for every province. Alas, whether or not this practice was valid before, it appears that the BCCA in Owen v. Rocketinfo, Inc. has greatly restricted or possibly even killed it.

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Charter and Defences to the Enforcement of Foreign Judgments

Posted by Seva on August 7, 2008

Enforcement of foreign judgments is prima facie concerned with foreign civil judgments. Enforceable foreign judgments, while no longer necessarily pecuniary, still exclude penal judgments and thus arise out of private disputes between parties. In this context, it is difficult to see how the Charter, imposing constraints on our government’s actions, particularly in criminal matters, would have any application. However, the duty of tenacious representation (and billable hours) relentlessly drives the lawyers’ search for loopholes. Thus, in King v. Drabinsky, 2008 ONCA 566, the defendants argued that the difference between the US and Canadian constitutional protections against self-incrimination, in the situation where the defendants were sued in a civil action in the US, and charged with a related criminal offence in Canada, resulted in a breach of natural justice and thus a defence to the recognition and enforcement of the judgment. Holding that s. 13 of the Charter “would likely protect” the defendants and prevent the use of the testimony from the US civil proceedings in a Canadian criminal trial, the court upheld the trial judge’s decision to recognize the foreign judgment.

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Contextual Natural Justice

Posted by Seva on June 3, 2008

When defending against recognition and enforcement of a foreign judgment, natural justice of the foreign procedure must be evaluated from based on the Canadian standard of fairness: Beals v. Saldanha. As the decision of the Nova Scotia Supreme Court in Arcadia International v Janmeja, 2008 NSSC 91 illustrates, natural justice must be evaluated not only as the procedural rules under which a proceedings are commenced or conducted, but also the factual matrix in which such rules are applied.

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When All Else Fails…Say You Didn’t Get It

Posted by Seva on April 8, 2008

Here is yet another enforcement of foreign judgment case where the defence of “I did not receive it” was given considerable weight: CE Design Ltd. v. Saskatchewan Mutual Insurance Company, 2008 SKQB 12. However, unlike the B.C. case discussed in the previous post, this time the defence was successful.

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Taxonomy of Natural Justice

Posted by Seva on April 3, 2008

Another B.C. case dealing with enforcement of foreign judgments came to my attention today. It is a two-part decision by Mr. Justice Myers in Marx v. Balak. The first part addresses the defendant’s applications to refuse enforcement because of breaches of natural justice and fraud (2008 BCSC 195). The second addresses an application to stay or defer the proceeding while the defendant applies to set aside the original default judgment in Utah (2008 BCSC 222).

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Posted in civil procedure, foreign judgments | Tagged: , , | 3 Comments »

Final? Check! Jurisdiction? Presumed! Enforcement? Not in Small Claims Court!

Posted by Seva on March 31, 2008

Surfing for conflict of laws news, I came across a recent decision of the Nova Scotia Supreme Court in Direct Cash ATM Processing Partnership v. Eastside Billiards and Lounge Ltd., 2008 NSSC 77. Although not groundbreaking, I found the decision interesting with respect its discussion of conditions for enforcing foreign judgments at common law and the appropriate venue for such enforcement.

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Are We All Just Wasting Time?

Posted by Seva on March 12, 2008

This morning, I woke up to a very interesting comment left by professor John Swan, counsel with the Toronto firm of Aird & Berlis LLP and an adjunct professor at Osgoode Hall Law School.

Since the existence of the doctrine of renvoi is (i) necessarily entailed by the struc-ture of conflicts analysis and (ii) logically insoluble, one has to consider the pos-sibility that the entire structure of conflicts is founded on a fundamental misap-prehension of what is required to deal with cases of geographically complex facts, i.e., all cases that would be regarded as coming within the rubric of “Conflicts”.

After teaching the subject for over 25 years, I have come firmly to the conclusion that it simply should not exist but should instead disappear (i) with respect to issues of jurisdiction and the recognition and enforcement of foreign judgments into questions of constitutional law within Canada and international law outside it, and (ii) with respect to all issues of contracts, torts, etc., into simple issues of those areas. See Swan, “The Canadian Constitution, Federalism and the Conflict of Laws” (1985), 63 Canadian Bar Review 272, “Choice of Law in Contracts” (1991), 19 Canadian Business Law Journal 213, and “Federalism and the Conflict of Laws: The Curious Position of the Supreme Court of Canada” (1995), 46 University of South Carolina Law Review 923.

I admit that this is a perspective that I have not been exposed to before, not in the curriculum of the conflict of laws course that I took or my conversations with professors or practitioners. However, the idea is intriguing to me. Is the whole area of conflict of laws merely a byproduct of some overzelous lawyers or judges who had to create a whole new area of law instead of realizing that the questions they faced could be resolved within the existing frameworks, or is it that the discrete nature of this area of law has outlived its usefulness? In other words, in the days of pragmatic and functional approach to law, rather than the strict formal approached espoused in the 19th century, is our current legal system sufficiently flexible to absorb conflicts into existing legal dogmas?

Even more importantly (in my mind), I have the following two questions about Prof. Swan’s conclusions:

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Posted in choice of law, foreign judgments, General, jurisdiction simpliciter | Tagged: , , , | 1 Comment »

Summary Enforcement of Foreign Judgments

Posted by Seva on March 11, 2008

Without breaking any new legal ground, the decision of Master Scarth in Suncom Inc. v. Andrew Stone Casino Promotions Ltd., 2007 BCSC 1904 illustrates some interesting practical points.

In Suncom, the plaintiff brought a Rule 18 application for summary judgment to recognize and enforce a default judgment obtained in Nevada. The relatively unusual aspect of this case was that it was brought under Rule 18, rather than Rule 18A, showing that the plaintiff had a very high degree of confidence in its case, arguing that “there is no defence to the whole or part of a claim, or no defence except as to amount” and deposing that it “knows of no fact which would constitute a defence to the claim.” To successfully defend against this application, the defendants merely had to show a “bona fide triable issue”.

The defendants in fact argued three triable issues, all rooted in Beals v. Saldanha, 2003 SCC 72: (1) lack of real and substantial connection between the Nevada court and the defendants, despite the presence of a jurisdiction selection clause; (2) defence of fraud; and (3) defence of public policy.

Master Scarth held that none of the defendant’s arguments raised a bona fide triable issue. With respect to jurisdiction simpliciter of the Nevada court, relying on Beals and Z.I. Pompey Industries v. ECU-Line N.V., 2003 SCC 27, she held that a jurisdiction selection clause demonstrates a prima facie real and substantial connection and must be enforced by the court in the absence of “strong cause to the contrary”. The defendants’ argument that the work under the contract was not performed in Nevada did not raise a “strong cause” as a triable issue. Relying on Zaidenberg v. Hamouth, 2005 BCCA 356, she concluded “that there is no triable issue relating to the defence of fraud, in that it is clear that there is no new evidence supporting the fraud defence which was not discoverable with due diligence prior to the default judgment being granted.” Finally, with respect to the argument that the Nevada judgment was contrary to the “Canadian concept of justice” because it included prima facie compensatory punitive damages, relying on Old North State Brewing Co. v. Newlands Services Inc. (1998), 58 B.C.L.R. (3d) 144, she concluded that “whether punitive damages are included in the judgment or not, there is no issue which merits a trial on that point” as “award of … punitive damages, cannot be considered to be contrary to the public policy of British Columbia”.

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