Simon's Megalomaniacal Legal Resources

Foreign Judgments - Common Law

. Eurobank Ergasias S.A. v. Bombardier inc.

In Eurobank Ergasias S.A. v. Bombardier inc. (SCC, 2024) the Supreme Court of Canada reviews the Canadian law of letters of credit, here in the context of considering the "fraud exception" whereby "an issuing bank must refuse to honour a demand for payment".

Here the court considers the unenforceability of a foreign judgment where it has not yet been specifically-ordered enforced by a local Canadian court (here it was Quebec) - noting though that it still may have evidentiary use, as going to evidentiary 'weight' on the underlying issues:

[99] With respect, Eurobank is wrong to say that the judgments of Greek courts have any decisive relevance in this case.

[100] While “foreign judgments are not enforceable in and of themselves” (Kuwait Airways Corp. v. Iraq, 2010 SCC 40, [2010] 2 S.C.R. 571, at para. 20), they may be recognized and declared enforceable under arts. 3155 et seq. C.C.Q. When a foreign judgment has not been recognized and enforced, it may nevertheless be received in Quebec as evidence. In such a case, and as Mainville J.A. correctly observed in the impugned judgment, the foreign judgment provides prima facie proof of its reported facts and of the good application of foreign law, but it is not binding on Quebec courts (see generally C. Piché, La preuve civile (6th ed. 2020), at p. 259; G. Goldstein and E. Groffier, Droit international privé, t. I, Théorie générale (1998), at No. 155).

[101] When a party applies for recognition and enforcement of a foreign judgment pursuant to arts. 3155 et seq. C.C.Q., the burden falls on the opposing party to show that an exception to the general rule that foreign judgments ought to be recognized and enforced in Quebec applies (Barer v. Knight Brothers LLC, 2019 SCC 13, [2019] 1 S.C.R. 573, at para. 24).

[102] In this case, no party has sought the recognition and enforcement of the Greek judgments in Quebec. This may have been a deliberate choice on Eurobank’s part given the difficulty it might have faced in light of the public order exception in art. 3155(5) C.C.Q. and the likelihood that this exception would have been raised by opposing parties. The public order exception applies when “the solution provided by the foreign judgment” cannot “be harmoniously incorporated into the legal order of the Quebec forum” (R.S. v. P.R., 2019 SCC 49, [2019] 3 S.C.R. 643, at para. 52). As the majority judges in the Quebec Court of Appeal observed in this case, the Greek judgments, particularly those of Judge Kostis of the Athens One-Member First Instance Court and of the Court of Appeal of Athens, might have raised public order concerns because of their inconsistency with the relevant orders of the ICC Arbitral Tribunal. Mainville J.A. wrote that the decision of the Court of Appeal of Athens “essentially stands for the proposition that the Greek State may ignore with impunity both the Interim Order and the Final Award of the ICC Arbitral Tribunal even if it formally undertook to abide by the arbitration process” and identified this as a public order concern (para. 69).

[103] Mainville J.A. explained, relying on arts. 3155(5) and 3081 C.C.Q., that Quebec courts are not bound to enforce or recognize foreign judgments when the result of doing so is manifestly inconsistent with public order as understood in international relations. I take due note of Mainville J.A.’s analysis of this point, which is amply supported by this Court’s jurisprudence and relevant scholarship (R.S., at paras. 52-53; Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at paras. 71-72; Goldstein and Groffier, at No. 166; S. Guillemard and V. A. Ly, Éléments de droit international privé québécois (2019), at pp. 64-66). Mindful that the public order exception is understood to be more limited under art. 3155 C.C.Q., I take care to recall that this matter need not be decided here because no application for recognition and enforcement was made.

[104] Absent a successful application for recognition and enforcement, the Greek judgments are merely evidence that do not bind Quebec courts, and the weight given to them is an issue of fact to which deference is owed on appeal. While none of the parties expressly argued this point, pursuant to art. 2822 C.C.Q., in the law of evidence, a foreign judgment may be treated as a semi-authentic act that is presumptively proof of its contents that may be produced as evidence in Quebec (see Piché, at Nos. 341 and 345; Goldstein and Groffier, at No. 155). As Mainville J.A. correctly noted, “when foreign judgments are received in evidence without being formally recognized in Quebec, they are prima facie proof of the reported facts, of the good application of the foreign law and of the foreign court’s jurisdiction on the matter” (para. 64).

[105] In Canadian Forest Navigation Co. v. R., 2017 FCA 39, [2017] 4 C.T.C. 63, a case that Mainville J.A. relied upon, Boivin J.A. explained that “factual findings contained within [foreign] judgments are facts that cannot be disregarded by a Court” but rejected the idea that “pursuant to article 2822 C.C.Q. these foreign orders are dispositive” (paras. 15 and 19). The weight given to “foreign orders as facts”, as Boivin J.A. recalled, is a matter for the trier of fact to decide, “with a full evidentiary record at his or her disposal” (para. 20; see also Digiulian v. Succession de Digiulian, 2022 QCCA 531).

[106] The trial judge and the majority judges at the Court of Appeal plainly saw this and concluded that Bombardier had met its burden. Both the trial judge and the Court of Appeal expressly considered the weight to be given to the decision of Judge Kostis as a matter of fact. Mainville J.A. considered the significance of the decision of the Court of Appeal of Athens, which had been rendered after the trial judgment of Wery J. The trial judge expressly considered how much weight to give the decision of Judge Kostis and opted to give it none. Expressly referring to Judge Kostis’s decision, Mainville J.A. confirmed that finding and, likewise, decided to give “no weight” to the decision of the Court of Appeal of Athens (para. 65). I emphasize that “it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence” absent a palpable and overriding error (Housen, at para. 23). Eurobank has failed to show any basis to interfere with the decisions by the courts below to give no weight, as evidence, to the Greek judgments.

[107] Moreover, as Mainville J.A. observed, a decision to place little or no weight on an unenforceable foreign judgment can be justified if that decision does not give proper consideration to relevant Canadian judgments or if it raises other public order concerns (see paras. 65 and 67-69; see also Beals, at para. 29). While comity is “a useful guiding principle” (Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205, at para. 17), it is important to recall that it is also “a balancing exercise” (Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 27). In this case, a decisive factor was the conclusion of the foreign courts that a party can disregard an order of an arbitral tribunal to which it has agreed to be subject (see Sup. Ct. reasons, at para. 176; C.A. reasons, at para. 69). In the circumstances, it was open to the courts below to give the Greek decisions no weight, as mere facts rather than as executory judgments, in measuring the conduct of HMOD and Eurobank for the purposes of the Letter of Counter-Guarantee.

[108] For the same reasons as the trial judge and the majority of the Quebec Court of Appeal in respect of the foreign decisions they considered, I would give no evidentiary weight to the judgment of the Hellenic Supreme Court that has been adduced by Eurobank as additional evidence before this Court. I recall that Mainville J.A. properly observed that the decision of the Court of Appeal of Athens “essentially stands for the proposition that the Greek State may ignore with impunity both the Interim Order and the Final Award of the ICC Arbitral Tribunal even if it formally undertook to abide by the arbitration process” (para. 69). The Hellenic Supreme Court ostensibly confirmed that same conclusion. In the certified English translation, quoting from the judgment of the Court of Appeal of Athens with approval, it wrote that “[a]s far as the issuing of interim orders by the International Court of Arbitration and the Superior Court of Quebec respectively are concerned, which prohibited payment of the guarantee letters on an interim basis, it should be noted that as interim decisions of the International Court of Arbitration and the foreign court they were not binding on the Greek State” (Motion to adduce fresh evidence, at p. 67).

[109] The judgment of the Hellenic Supreme Court thus raises exactly the same public order concern as the judgment of the Court of Appeal of Athens which led to the findings, made respectively by the Quebec Superior Court and Court of Appeal, to give no weight to the decisions of the Greek courts. Even taking account of the new evidence, Eurobank has failed to show any error in the courts below warranting interference on appeal. Moreover, the judgment of the Hellenic Supreme Court, which speaks to the conduct of HMOD under Greek law with respect to the Letter of Guarantee, sheds no light on whether HMOD’s conduct, as a third party to the Letter of Counter-Guarantee, was fraud by a third party by Canadian standards pursuant to Angelica-Whitewear. Nor does that judgment speak usefully to whether Eurobank knew of or participated in that fraud in a manner that is relevant to its demand for payment under the Letter of Counter-Guarantee. The judgment of the Hellenic Supreme Court adduced in evidence, like the prior Greek decisions weighed by the courts below, has no probative value in respect to the issues now before this Court.

[110] Although these judgments might be enforceable in Greece, as I have emphasized, HMOD’s conduct under Greek law is not at issue. Instead, it is HMOD’s conduct under Quebec law with respect to the Letter of Counter-Guarantee that is engaged directly by Bombardier’s petition for an injunction against the National Bank making payment in the Superior Court. Absent an enforceable foreign judgment on the matter, Quebec courts were required to draw their own conclusions, in applying Quebec law, regarding whether HMOD engaged in fraud in the transaction as a third party to the Letter of Counter-Guarantee.

. Agrest v. Pekker

In Agrest v. Pekker (Ont CA, 2023) the Court of Appeal briefly walked-through a straightforward foreign (Russian) judgment enforcement case:

[9] Recently, in early 2019, Mr. Agrest learned through a mutual acquaintance that Mr. Pekker has significant assets in Canada. Based on this new information, Mr. Agrest brought an application in Canada to enforce the Russian judgment.

[10] Following the hearing of the enforcement application, the Russian judgment was recognized and enforced.

[11] The application judge reviewed the applicable law and based his decision on Beals v. Saldanha, 2003 SCC 72 (CanLII), [2003] 3 S.C.R. 416. He found that Mr. Pekker had not made out the defence that he was denied natural justice during the proceedings in Russia. As such, the Russian proceedings were not contrary to Canadian notions of fundamental justice.

[12] We see no error in the application judge’s decision or reasoning.

[13] Throughout the Russian proceedings, Mr. Pekker was given adequate notice of the claim made against him and was granted the opportunity to defend the claim. Further, he had the opportunity to raise the issue of insufficient notice on appeal to the Moscow City Court. The appellate court made a factual finding that Mr. Pekker was given adequate notice, and Mr. Pekker did not avail himself of the opportunity to further appeal this finding in Russia.

[14] There is no evidence as to the arguments made and the evidence presented on the appeal. We see no basis on which to interfere with the application judge’s decision on either substantive or procedural grounds. In our view, the minimum standards of fairness were met in the Russian process.

. CSA8-Garden Village, LLC v. Dewar

In CSA8-Garden Village, LLC v. Dewar (Superior Court, 2013) 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.

. H.M.B. Holdings Limited v. Antigua and Barbuda

In H.M.B. Holdings Limited v. Antigua and Barbuda (Ont CA, 2022) the Court of Appeal considered a 'richochet' judgment, a foreign judgment recognized for enforcement in another Canadian province and then sought to be enforced in Ontario - here under the Reciprocal Enforcement of Judgments Act (Act). That Ontario proceeding was denied, as were further appeals to the Supreme Court of Canada. The applicant now seeks to enforce the BC judgment under the common law. This extract of the case deals with the substance of the later Ontario common law proceedings [paras 23-31], and the court holds that the common law does not tolerate such foreign 'ricochet' proceedings [paras 32-57 (not extracted)]:

[23] This case raises the issue of the circumstances, if any, in which an Ontario court should recognize and enforce a recognition and enforcement judgment from another province pursuant to the common law. While there is a handful of cases where Canadian courts have permitted ricochet judgments, those cases do not directly address the court’s legal authority for doing so at common law. Accordingly, I start my analysis with a review of the general principles that apply to the recognition and enforcement of foreign judgments. I then apply the principles distilled from this review to the circumstances of this case. Finally, I address H.M.B.’s arguments that prior decisions in Canada have permitted ricochet judgments.

[24] As set out below, I have concluded that the common-law test for the recognition and enforcement of foreign judgments does not contemplate the viability of ricochet judgments. Accordingly, while I would uphold the motion judge’s decision dismissing H.M.B.’s action, I arrive at this outcome using a different path.

(1) General principles that apply to the recognition and enforcement of foreign judgments

[25] In Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077, the Supreme Court established that the test for determining whether a court in one province should recognize and enforce a judgment from another province is whether there is a “real and substantial connection” between the court that issued the judgment and the proceeding or the parties in the original jurisdiction: at pp. 1108-9. However, even where there is such a real and substantial connection, the enforcing court retains a residual discretion to refuse to recognize and enforce a judgment where doing so would create an injustice or be tantamount to an abuse of process. In adopting this approach, the court emphasized the importance of comity; namely, the need for the courts of one province to show deference and respect for judgments rendered by the courts of other provinces: Morguard, at pp. 1102-3.

[26] In Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, the Supreme Court confirmed that the rationale for recognizing and enforcing interprovincial judgments in Morguard “is equally compelling with respect to foreign jurisdictions”: at para. 25. Again, the court emphasized that the rationale for recognizing and enforcing foreign judgments is comity; that is, the importance of respect between sovereign states: see Beals, at paras. 27-29, citing Morguard, at pp. 1096, 1107.

[27] Accordingly, in Beals, the court confirmed that the real and substantial connection test applies to the process by which Canadian courts may recognize and enforce judgments granted by courts in foreign jurisdictions. In applying this test, the court must first consider whether the foreign jurisdiction has a real and substantial connection with the defendant or the subject matter of the litigation: at paras. 37-39. Next, the court can refuse to recognize and enforce the foreign judgment if it was obtained by fraud, if the foreign court breached the rules of natural justice or if recognizing and enforcing the foreign judgment would be contrary to public policy: at paras. 35, 40. The court emphasized that the issue of public policy has a narrow application and is only to be invoked where it is appropriate for the court to condemn the foreign law on which the judgment is based: para. 75.

[28] More recently, in Chevron Corp. v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69, the Supreme Court reaffirmed that the real and substantial connection test applies to the recognition and enforcement of foreign judgments by Canadian courts. In Chevron, the Supreme Court addressed the issue of whether a Canadian court must have a real and substantial connection with the subject matter of the claim or the defendant before taking jurisdiction in an action for recognition and enforcement. Specifically, the court addressed whether a defendant must be present or have assets in the jurisdiction as a precondition to recognizing and enforcing a judgment in that jurisdiction. In that context, the court held that “there is no need to probe the relationship between the enforcing forum and the action or the defendant”: at para. 37. Instead, the enforcing court has jurisdiction over the defendant as long as there was effective service on the defendant against whom recognition and enforcement is sought: Chevron, at para. 36.

[29] The court explained the rationale for this approach by reviewing the differences between an original judgment and a recognition and enforcement judgment. The court noted that the role of the enforcing court is to facilitate enforcement, not to probe the merits of the original claim: Chevron, at para. 44. The court emphasized, at para. 46, that recognition and enforcement of foreign judgments is a highly localized phenomenon, and therefore nothing would be gained by mandating a link between the foreign dispute and the enforcing forum:

[E]nforcement is limited to measures ― like seizure, garnishment, or execution ― that can be taken only within the confines of the jurisdiction, and in accordance with its rules: [Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612], at para. 11; J. Walker, Castel & Walker: Canadian Conflict of Laws (6th ed. (loose-leaf)), at p. 11-52. The recognition and enforcement of a judgment therefore has a limited impact: as Walker states, “[a]n order enforcing a foreign judgment applies only to local assets” (p. 14-11). The enforcing court’s judgment has no coercive force outside its jurisdiction. Whether recognition and enforcement should proceed depends entirely on the enforcing forum’s laws. [Emphasis added.]

[30] At para. 49, the court in Chevron further emphasized the localized nature of recognition and enforcement proceedings, noting that each province controls the rules for recognizing and enforcing foreign judgments in its territory:

Enforcement is limited to the seizable assets found within the province. No constitutional concern about the legitimacy of this exercise of jurisdiction emerges. I acknowledge that, under provincial legislation, a recognition and enforcement judgment issued in one province may be capable of being “registered” in another province, thus offering some advantage to plaintiffs who have already successfully obtained a recognition and enforcement judgment. Nevertheless, the existence of such legislation does not alter the basic fact that absent some obligation to enforce another forum’s judgments, the judicial system of each province controls access to its jurisdiction’s enforcement mechanisms, whenever a foreign judgment creditor seeks to seize assets within its territory in satisfaction of a foreign judgment debt. [Emphasis added.]

[31] Accordingly, as a general principle, a court in one jurisdiction will recognize and enforce the judgments of another jurisdiction, as long as the original jurisdiction had a real and substantial connection with the claim or the defendant, and as long as none of the bars to recognition and enforcement referred to above are present.