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Foreign Judgments - General. Sociedad Concesionaria Metropolitana de Salud S.A. v. Webuild S.p.A.
In Sociedad Concesionaria Metropolitana de Salud S.A. v. Webuild S.p.A. (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here regarding "whether a foreign arbitral award can be enforced in Ontario, not against the judgment debtor, but against a non-party to the arbitration who contests liability".
This was an exotic international case where a Chilean arbitrator made an award against an Italian company ['Astaldi'], and then - in Italian insolvency proceedings - an issue of contract interpretation arose as to whether a second Italian company ['Webuild'] "acquired Astaldi’s liability for the Arbitral Award". Subsequently, the successful party to the abitration ['Sociedad'] applied in Ontario "to enforce the Chilean Arbitral Award against Webuild although Webuild was not party to the Chilean arbitration". Then Webuild moved to stay that application on grounds that Ontario was a 'forum non conveniens' and that the "ability to enforce the Arbitration Award against Webuild had not yet been determined" (ie. Webuild's liability for the arbitration award hadn't been determined with finality), and this was best done in Italy. The judge granted Webuild's stay application. These are the reasons for decision of an appeal of the application judge's ruling, which was dismissed.
Here the court reviews the appellant's position regarding the lower court's 'forum non conveniens' interpretation, which may be a reconciliation of the doctrines of 'forum non conveniens' and the common law version of 'reciprocal enforcement of judgments' [see: Foreign (ie. Non-Ontario) Judgment Enforcement]:(b) Whether the Motion Judge Misconstrued the forum non conveniens Doctrine and Erred in Severing Liability from Enforcement
[51] Sociedad submits that the motion judge erred in law in staying its application because the doctrine of forum non conveniens does not apply to recognition and enforcement actions. Sociedad also submits that the motion judge should not have severed liability from enforcement and stayed the proceedings on the basis that Ontario was forum non conveniens in respect of the liability issue.
[52] Sociedad notes that in Chevron Corp. v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69, at paras. 44-46, the Supreme Court held that:[T]he purpose of an action for recognition and enforcement is not to evaluate the underlying claim that gave rise to the original dispute, but rather to assist in enforcing an already-adjudicated obligation. ... [T]he enforcing court’s role is not one of substance, but is instead one of facilitation…since enforcement concerns only local assets, ‘there is no basis for staying the proceedings on the grounds that the forum is inappropriate’. [Emphasis added; citations omitted.] [53] There is no question that this is an accurate statement of the law.
[54] In this case however, unlike Chevron, there is no “already-adjudicated obligation”. Webuild contests liability for the damage award against Astaldi. Without a decision on Webuild’s liability for the Astaldi debt, the Ontario court’s role is not one of “facilitation” but rather, one of adjudication and, if and only if liability is established, enforcement.
[55] I therefore agree with the respondent that this is not a standard recognition and enforcement case and given that the underlying obligation is hotly contested, it must be determined before an order for enforcement can be sought.
[56] The appellant cites caselaw on piercing the corporate veil for the proposition that it is not unusual for a court to determine third party liability at the enforcement stage of a foreign arbitral award. I am not persuaded that these cases are analogous to this situation.
[57] This case is distinguishable from Chevron. As noted by the motion judge, unlike in Chevron, Webuild and Astaldi are “not related companies.” Moreover, in Chevron, unlike this case, both liability and piercing the corporate veil were subject to Canadian law. In this case, not only is liability a matter of Italian law, but Sociedad did not frame its case as one of piercing the corporate veil between Astaldi and Webuild: Chevron at para. 80.
[58] As such, the cases like Chevron, which dealt with piercing the corporate veil, are not applicable: see also Roxford Enterprises S.A. v. Cuba (T.D.), 2003 FCT 763 (CanLII), [2003] 4 F.C. 1182, at para 25, citing Canada (Minister of National Revenue) v. Gadbois, 2002 FCA 228, 298 N.R. 374, para 29. Nor are the cases involving enforcement of an arbitral award against non-signatory parent companies or alter egos as there is no suggestion that Webuild is the parent company or alter ego of Astaldi: see Xerox Canada Ltd. v. MPI Technologies Inc., 2006 CanLII 41006 (Ont. S.C.); Air India Ltd. c. CC/Devas (Mauritius), Ltd., 2022 QCCA 1264.
[59] Similarly, the cases used to suggest that it was an error for the motion judge to sever liability from enforcement, are also distinguishable: see Innis Estate v. Sunwing Travel Group Inc., 2024 ONSC 1102; Check Group Canada Inc. v. Icer Canada Corp., 2010 NSSC 463, 299 N.S.R. (2d) 145; SCP Distributors Canada, Inc. v. Silver Pacific Investments Inc., 2020 BCSC 1573. Generally, these cases involved courts declining to split actions or proceedings on the basis of fairness and efficiency where a plaintiff had claimed, on agreed facts, against multiple defendants, and one of the defendants attempted to have their claim litigated in a different forum than the rest of the defendants. None of these cases involved the enforcement of arbitral awards, or the severance of liability from enforcement.
[60] The motion judge therefore did not err in finding that (i) the application was not purely a case of recognition and enforcement and (ii) forum non conveniens remains a valid consideration for the determination of Webuild’s liability. Nor did she err in holding that liability must be determined before enforcement can be addressed. Enforcement is only applicable if liability is established. As such, if and when it is determined that Webuild is liable to pay Astaldi’s damages obligation, that award can be enforced.
[61] I would therefore dismiss this ground of appeal.
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[93] Sociedad seeks to enforce a foreign arbitral award against a non-party to the arbitration. Whether the non-party is liable for the judgment debtor’s obligation to Sociedad remains in question. As the liability of the non-party is a prerequisite to enforcement, the two issues are distinct.
[94] Forum non conveniens applies to the issue of liability. The motion judge considered, applied, and balanced the forum non conveniens factors, and reasonably concluded that Italy was the clearly more appropriate forum for the resolution of liability.
[95] This application of the correct forum non conveniens factors is owed significant deference. As such, it was open to her to stay Sociedad’s application to enforce the Arbitral Award until such time as liability has been determined by an Italian court.
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