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Foreign Judgments

1. General
2. Procedures for Enforcement of Non-Canadian Judgments in Ontario
3. Non-Canadian Foreign Judgments and Ontario Limitation Periods
4. Exclusive Jurisdiction Clauses

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Unconsolidated Cases

Foreign Judgments - Limitations
Grayson Consulting Inc. v. Lloyd (Ont CA, 2019)

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1. General

The topic here is the procedures for enforcing foreign (non-Canadian and non-Ontario) judgments in Ontario. The procedure for enforcing non-Canadian judgments (except UK) is made under common law, while other provincial and UK judgments are governed by statutes: the Reciprocal Enforcement of Judgments Act and the Reciprocal Enforcement of Judgments (UK) Act.

2. Procedure for Enforcement of Foreign Judgment in Ontario

. Independence Plaza 1 Associates, L.L.C. v. Figliolini

In Independence Plaza 1 Associates, L.L.C. v. Figliolini (Ont CA, 2017) the court briefly canvasses the procedure in Ontario courts for enforcing a foreign money judgment:
[33] Following Beals, the test for recognition and enforcement of foreign money judgments is as follows. First, the party seeking to enforce the foreign judgment must establish that the foreign court took jurisdiction according to Canadian conflict of laws rules, i.e. there must be a “real and substantial connection” between the subject matter of the litigation and the foreign jurisdiction. Second, the judgment must be for a fixed sum of money. Third, the judgment must be final and conclusive. Fourth, the party resisting the foreign judgment bears the burden of establishing any applicable defences, including fraud, public policy and lack of natural justice. See also Bank of Mongolia v. Taskin, 2011 ONSC 6083 (CanLII), [2011] O.J. No. 4572 (Div. Ct.), aff’d 2012 ONCA 220 (CanLII), [2012] O.J. No. 1469; Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 (CanLII), [2006] 2 S.C.R. 612.

3. Foreign Judgments and Ontario Limitation Periods

. Independence Plaza 1 Associates, L.L.C. v. Figliolini

In Independence Plaza 1 Associates, L.L.C. v. Figliolini (Ont CA, 2017) the main issues are whether an Ontario limitation period applies for commencing an Ontario proceeding to enforce the non-Canadian judgment, and if so then when does it commence - ie. at the date of the foreign judgment or the date that foreign appeal proceedings from it are concluded? The court also expounded generally on the history and purposes of limitation periods in litigation:
D. ANALYSIS

[17] The correct approach to resolving the two questions raised by this appeal begins and ends with the provisions of the Limitations Act, 2002, which is a comprehensive and exhaustive scheme for dealing with limitation periods: Intact Insurance Co. of Canada v. Lombard General Insurance Co. of Canada, 2015 ONCA 764 (CanLII), 128 O.R. (3d) 658, at paras. 53-56, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 10 and [2016] S.C.C.A. No. 11.

[18] Accordingly, I will begin my analysis by explaining the purpose of statutes of limitation. I will then examine the relevant provisions of the former Ontario Limitations Act, R.S.O. 1990, c. L.15, and their interpretation in the case law. Finally, I will discuss the legislative history of the Limitations Act, 2002 and the relevant provisions of the statute. Against this background, I will address the two questions raised by this appeal.

(1) Discussion

(i) The purposes of statutes of limitation

[19] Limitations statutes reflect public policy about efficiency and fairness in the justice system. There are three broad policy justifications for limitation statutes: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 (CanLII), [2013] 1 S.C.R. 623, at paras. 231-234.

[20] First, they promote finality and certainty in legal affairs by ensuring that potential defendants are not exposed to indefinite liability for past acts: Hare v. Hare (2006), 2006 CanLII 41650 (ON CA), 83 O.R. (3d) 766 (C.A.), at para. 41. They reflect a policy that, after a reasonable time, people should be entitled to put their business and personal pasts behind them and should not be troubled by the possibility of “stale” claims emerging from the woodwork.

[21] Second, they ensure the reliability of evidence. It is inefficient and unfair to try old claims because evidence becomes unreliable with the passage of time. Memories fade, witnesses die and evidence gets lost. After a reasonable time, people should not have to worry about the preservation of evidence: K.M. v. H.M., 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, at p. 30.

[22] Third, and related to this, limitation periods promote diligence because they encourage litigants to pursue claims with reasonable dispatch.

[23] Other justifications have been given, including the interest in the efficient use of public resources through the expeditious resolution of disputes and the desirability of adjudicating disputes on the basis of contemporary values and standards: see Graeme Mew, The Law of Limitations, 3d ed. (Toronto, LexisNexis, 2016), at pp. 16-18.

(ii) The former Limitations Act, R.S.O. 1990, c. L.15

[24] Section 45(1)(g) of the former Limitations Act contained a six-year limitation period for an action on a simple contract or debt. A long line of cases held that an action on a foreign judgment was an action on a simple contract debt for limitations purposes and therefore subject to that six-year limitation period: see Lax, at para. 11; Rutledge v. United States Saving & Loan Co. (1906), 37 S.C.R. 546, at p. 547; and Bedell v. Gefaell (No. 1), 1938 CanLII 92 (ON CA), [1938] O.R. 718 (C.A.), at p. 720. This view was based on the fiction of an implied promise by the foreign judgment debtor to pay the amount of the judgment. As Feldman J.A. noted, at para. 13 of Lax, this fiction was necessary because, “unlike a domestic judgment, a foreign judgment cannot be directly enforced [in Ontario] by execution. Rather, an action must be brought to enforce the debt it creates.”

[25] Section 45(1)(c) of the former Limitations Act also contained a twenty-year limitation period on an “action upon a judgment or recognizance.” In Lax, at paras. 20-25, Feldman J.A. confirmed that this provision did not apply to an action on a foreign judgment. It applied to an action brought in order to toll the limitation period to enforce a domestic judgment using the execution procedures set out in r. 60 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[26] The practice of bringing an action on a domestic judgment to toll the limitation period for its enforcement within the province was discussed by the British Columbia Court of Appeal in Young v. Verigin, 2007 BCCA 551 (CanLII), 72 B.C.L.R. (4th) 332, at paras. 4-8. Newbury J.A. observed that in British Columbia, the limitation period for an action on a domestic judgment for the payment of money was reduced from twenty to ten years by the Limitations Act, S.B.C. 1975, c. 37, s. 3(2)(f). That provision was then amended by the Enforcement of Canadian Judgments and Decrees Act, S.B.C. 2005, c. 29, by inserting the word “local” before the word “judgment,” presumably to clarify that the provision did not apply to foreign judgments: see Limitation Act, S.B.C. 2012, c. 13, s. 7(a).

[27] In Lax, this court rejected the suggestion of Cumming J., in obiter, in Girsberger v. Kresz (2000), 2000 CanLII 22329 (ON SC), 47 O.R. (3d) 145 (S.C.), at paras. 30-50, aff’d on other grounds, (2000), 2000 CanLII 22406 (ON SC), 50 O.R. (3d) 157 (C.A.), that the historical classification of foreign judgments as simple contract debts should be abandoned in order to give “full faith and credit” to foreign judgments on the basis of comity, order and fairness. Cumming J.’s suggestion would have subjected foreign judgments to the twenty-year limitation period in s. 45(1)(c) of the former Limitations Act.

(iii) The history of the Limitations Act, 2002

[28] The Limitations Act, 2002 was the culmination of several attempts, beginning in the late 1960s, to reform, consolidate and simplify the law of limitations in Ontario. The history of those attempts was set out by Weiler J.A. in York Condominium Corp. No. 382 v. Jay-M Holdings Ltd., 2007 ONCA 49 (CanLII), 84 O.R. (3d) 414, at paras. 27-30. See also McConnell v. Huxtable, 2013 ONSC 948 (CanLII), 113 O.R. (3d) 727, at paras. 62-73, aff’d, 2014 ONCA 86 (CanLII).

[29] The purpose of the new statute was to replace a complex, obscure and confusing regime of multiple limitation periods with a simple and comprehensive scheme. The new scheme consists of a basic two-year limitation period applicable to most claims, an “ultimate limitation period” of fifteen years and a statutorily-enshrined discoverability principle. It was intended to promote certainty and clarity in the law of limitation periods: see Dilollo Estate (Trustee of) v. I.F. Propco Holdings (Ontario) 2013 ONCA 550 (CanLII), 36 Ltd., 2013 ONCA 81, 117 O.R. (3d) 81, at para. 61.

(iv) The Limitations Act, 2002

[30] The following provisions of the Limitations Act, 2002 are relevant:
Definitions

In this act …

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;

Application

(1) This Act applies to claims pursued in court proceedings other than … [not applicable].



Basic Limitation Period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.



No limitation period

16. (1) There is no limitation period in respect of,



(b) a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of a court;
[31] Because the proceeding on the New Jersey judgment brought by the respondent in this appeal is a “claim pursued in a court proceeding,” it falls within the comprehensive and exhaustive scheme of the statute.

[32] The Limitations Act, 2002 eliminated its predecessor’s twenty-year limitation period for an action “upon a judgment or recognizance.” However, it included a “proceeding to enforce an order of a court or any other order that may be enforced in the same way as an order of a court” in the proceedings for which there is no limitation period under s. 16(1).

4. Exclusive Jurisdiction Clauses

. Forbes Energy Group Inc. v. Parsian Energy Rad Gas

In Forbes Energy Group Inc. v. Parsian Energy Rad Gas (Ont CA, 2019) the Court of Appeal considered the doctrine of forum non conveniens in the presence of an express attornment provision re both law and venue:
[2] The Term Sheet contains the following clause: “This term sheet shall be governed by and construed in accordance with the laws of England and the Parties agree to attorn to the courts of England” (hereafter the “Clause”).

[3] In December 2016, DMCC and Parsian demanded that Forbes make certain payments under the Term Sheet. Forbes disputed its obligation to do so and commenced this action in Ontario for a declaration that it was under no obligation to make the payments, together with other relief.

[4] Relying on the Clause, DMCC and Frontier moved to stay the action in favour of the courts of England. The motion judge granted a stay. Although she found that Ontario courts had jurisdiction over the subject-matter of the dispute, she declined jurisdiction on the basis that Forbes had failed to demonstrate strong cause that the Clause should not be enforced: Douez v. Facebook, Inc., 2017 SCC 33 (CanLII), [2017] 1 S.C.R. 751, at para. 29; Novatrax International Inc. v. Hägele Landtechnick GmbH, 2016 ONCA 771 (CanLII), 132 O.R. (3d) 481, at para. 5. Applying the strong cause test and the factors relevant to the forum non conveniens analysis, she held that England is the more appropriate forum than Ontario. The motion judge stayed the action. Forbes appeals.

[5] On this appeal, the parties agree that the strong cause test only applies to forum selection clauses that by their terms grant exclusive jurisdiction to a foreign jurisdiction. Forbes submits that the motion judge made no finding that the Clause was an exclusive jurisdiction clause. The respondents counter that she did.

[6] We are unable to read the reasons of the motion judge as containing any finding that the Clause amounted to an exclusive jurisdiction clause. In light of the jurisprudence referred to by the parties, we are not persuaded that the language used in the Clause amounts to an exclusive jurisdiction clause. That being the case, in light of the parties’ consensus on the applicable legal principles, we conclude that the motion judge erred in using the strong cause test.

[7] Given that conclusion, we accept Forbes’ submission that this court should conduct a fresh forum non conveniens analysis in which the respondents must demonstrate that England clearly is the more appropriate forum: Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), [2012] 1 S.C.R. 572, at para. 108.

[8] While the Clause remains a factor in the forum non conveniens analysis, it does not have determinative weight but must be considered together with all the other factors set out in para. 26 of Young v. Tyco International of Canada Ltd., 2008 ONCA 709 (CanLII), 92 O.R. (3d) 161. Examining those factors:
(i) there was no evidence that the Term Sheet was signed in either England or Ontario;

(ii) we agree with the motion judge that: (a) there does not appear to be a strong connection between the subject matter of the Term Sheet and England; and (b) since the witnesses are scattered around the world, there is no one location that would be more convenient for all of the witnesses;

(iii) although the Term Sheet provides that the law of England is the governing law, it is a common occurrence for an Ontario court to apply foreign law: A1 Pressure Sensitive Products Inc. v. Bostik, Inc., 2009 ONCA 206 (CanLII), at para. 4;

(iv) there is no suggestion of the loss of a legitimate juridical advantage; and

(v) on the record before us, there is nothing to suggest that the respondents contemplate bringing an action concerning the Term Sheet in England, thereby triggering Forbes’ obligation under the Clause to attorn to the jurisdiction of the English courts.



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